Stevens v. Park

Mr. Justice Scholfield delivered the opinion of the Court: The only question discussed in the present ease is, was the burden on the holder of the bank check of showing that no damage had accrued to the drawer by his omission to give notice of the non-payment of the check? It was held in Howes v. Austin, 35 Ill. 396, and M. and F. Insurance Co. v. Fischer et al. 30 id. 403, cited in appellee’s brief, that, as between the holder and the drawer, a demand, at any time before suit brought, is sufficient, unless it appears that the drawee has failed, or the drawer has, in some other manner, sustained injury by the delay; but in neither of those cases was -it decided, nor was the question before the court, upon whom the burden of making proof is, in the first instance, cast. In Willets v. Payne, 43 Ill. 433, it was, however, expressly held, the burden is on the holder to show that no loss accrued to the drawer, through his delay in giving notice of the non-payment of the check. . The acceptance of the check by the holder was not an absolute payment of the drawer’s debt; it was, however, a conditional payment. Story on Bills, § 419; Smith v. Miller, 43 N. Y. 173. It was presumptively drawn on a previous dejjosit of funds, and was an absolute appropriation of so much in the hands of the bank, to remain there until called for. Story on Promissory Notes, § 489; Little v. The Phenix Bank, 2 Hill, 427; Conger v. Armstrong, 3 Johns. Cases, 5; and. Conroy v. Warren, id. 259. Although the holder of the check did not, by the mere act of delay, lose his right of recourse on the drawer, still it was his duty to present the check for payment within a reasonable time, and give notice to the drawer of its dishonor within a like reasonable time; and if he failed to do so, the delay was at his peril. Story on Promissory Notes, § 492. By his omission he assumed the burden of showing that the failure to obtain payment of the check was through no fault of his; and, necessarily, that no damage had occurred to the drawer by his delay. Story on Promissory Notes, §498; Chi tty on Bills (8 Am. Ed.), 355; 2 Greenleaf's Evidence, § 195 a; Conger v. Armstrong, Conroy v. Warren, Little v. Phenix Bank, and Smith v. Miller, ubi supra; Hoyt v. Seeley, 18 Conn. 353; Daniels v. Kyle, 1 Ga. 304. The judgment is reversed and the cause remanded. Judgment reversed.