Bates v. Dwinell

•Coknish, J. This is an action for damages for refusal to deliver cattle purchased by plaintiffs from defendant. Plaintiffs recover. Defendant appeals. 'The question is whether the check for §5,000 on the Knox County Bank, given by plaintiffs to defendant for the cattle, constitutes payment so as to take the tran [713] saction out of the statute of frauds; the defendant disputing the correctness of its amount, having, the morning after receiving it, tendered the check back to plaintiffs without having presented it to the bank for payment, and the contract being oral. The statute is in its nature technical. To serve its purpose the payment must be absolute. The courts have generally regarded such use of a check as a means to payment; as taken in lieu of cash temporarily for convenience, not amounting to payment until cash is received upon it; or, as it might be stated, it is a mode of making a cash payment, and not the giving or accepting of a security. Such holding, we believe, reflects the facts of the transaction. Of course, if a check were taken under an agreement that it should constitute payment and discharge the debt, so that the creditor would hold it at his own risk, as respects the money in the bank, the case would be different. The evidence shows that the maker of the check had only $1,500 in the bank at the time. This being true, the check did not assign the $1,500. If the $3,500 additional was to be advanced in the nature of a loan, it would be a loan in excess of the am.ount permitted by the banking law to a bank of this bank’s capital, $10,000. The cashier swore that the check would have been paid if presented. It is doubtful if the court will presume that the bank would have paid the check according to the cashier’s promise, but rather that the bank would have refused payment, according to law. For cases bearing upon the question considered, see Groomer v. McMillan, 143 Mo. App. 612; Hessberg v. Welsh, 147 N. Y. Supp. 44; McLure v. Sherman, 70 Fed. 190; 22 Am. & Eng. Ency. Law (2d ed.) 569; 29 Am. & Eng. Ency. Law (2d ed.) 970. The judgment of the trial court is reversed and the cause remanded for further proceedings. Reversed. Sedgwick, J., not sitting.