Buehler v. Galt

Moran, J. The making of a check, and having the same certified by a bank, passes no title to the funds on which the check is drawn to the person named as payee of the check. Hntil the check is delivered, no right accrues by virtue thereof to the payee. Was this check ever delivered to appellees? The placing of the check by Doering in the hands of Walther, to be forwarded to appellees, does not constitute a delivery, because Walther was not the agent of appellees, but of Doering; and there was no time, up to the moment when it was deposited in the mail box, when Doering might not have had it returned to him, on his demand. In depositing the letter in the box Walther was acting for Doering, for the letter was in Doering’s name, and states that the check is sent to pay appellees, because by his agreement with LeClair he is to pay the note. The delivery, then, if there was one, consisted in depositing the check in the mail box, inclosed in the letter addressed to appellees. This did not, in our opinion, constitute a delivery of the check to appellees, under the facts of this case. If this check had been mailed to appellees by their direction or in response to their request, for "the purpose of paying the note which they held, there would no doubt be good ground for saying that the title thereto passed to them when it was mailed, and that the deposit in the mail box would constitute a delivery. But there is in this case no claim that appellees requested or directed the forwarding of this check; or that it was drawn or mailed with their knowledge. The rule stated in Morse on Banking, Sec. 305, and which seems to be founded in reason and based on respectable authority, is as follows: “ The title is in the sender until the check comes to the hands of the drawee, unless the latter has requested the sender to forward money to him by mailing check; in that case, the title vests in the drawee when the check is placed in the mail, according to his directions. Talbot v. Bank of Rochester, 1 Hill, 295; Graves v. The American Exch. Bank, 17 N. Y. 207. Appellees contend the delivery of a note or deed is complete when the maker or grantor has parted with his dominion over it, with intent that it shall pass to the grantee or payee, and they cite th; case of Kirkman & Luke v. The Bank of America, 2 Caldwell, (Tenn.) 397, where the title to a note which was lost in the mail, was held to vest in the payee from the time it was deposited for transmission. The facts of the case show, however, that the note was deposited in the mail with three other notes, under an agreement that notes indorsed were to be forwarded to the payees, but no particular indorsers were agreed upon, and the only question open was whether the payees would assent to the indorsers. It further appeared that when the payee learned of the loss they procured a duplicate and took steps to collect the note. The case stands on its own peculiar facts. In this case it is not to be assumed that Doering parted with dominion over the check by depositing it in the street letter box. %e are bound to notice judicially the postoffice regulations, as well those which authorize the sender of the letter to stop its transmission at any point before it has reached the hands, of the person to whom it is addressed, and get it back into his own hands, upon complying with certain conditions, as the rule which makes the deposit of a letter in a mail box on the street corner a mailing of the same. See Laws and Regulations of Postoffice, Secs. 531 and 533. It is not shown by the evidence how Doering regained possession of the letter and check, but these rules of the post-office show a lawful method by which he may have done it, and in the absence of evidence showing the contrary, we are bound to presume that he did regain it in a lawful manner. The principle already stated, that the title to a check not mailed at the request of the payee or drawee, remains in the sender during transmission, compels the assumption that the postoffice is to be regarded as the agent of the sender, and the effect of these regulations, giving, as they do, the sender power to stop and recall a letter sent, goes far to support that assumption, and to establish that the delivery of a letter into the hands of the postal authorities, is not in all cases to be regarded as a delivery to the one to whom it is addressed. The effect of a somewhat similar regulation of the French postoffice was held in England to constitute the postoffice the agent of the sender, till the point was reached, after which the sender could not regain the letter from the postal authorities. Ex parte Cote, In re Deveze, L. R. 9 Chy. App. 31. We are then of opinion that in this case the postoffice was the agent of Doering, at all times from the deposit of the letter in the box, till its re-delivery in Chicago, and that at no time was the letter or check in the hands of the agent of appellees. Therefore appellees never had title to the check, and were not entitled to maintain this action. But upon the rule stated in appellant’s fifth proposition of law, which the court refused, we think appellant’s defense to the action was complete. Said proposition was as follows: “ The court holds, as a matter of law, that the possession of a check by the drawer raises a presumption that it has not been delivered to the payee, and that unless notice of a different state of facts is brought home to the banker upon whom the check is drawn, he has a right to act upon that presumption and cancel the check on the application of the drawer.” Delivery of an instrument is not presumed from the fact of its execution. While the maker retains the custody of the instrument, the inference is that it has not been delivered, and unless there is evidence to put the party on notice that it has been delivered, he may legally deal with the instrument on the assumption that it has never passed from the custody of the maker. What principle is there that takes a certified check in the hands of the drawer out of this general rule ? We know of none, and must say, therefore, that the court below erred in refusing to hold said proposition of law. Abrams & Co. v. Union National Bank, 31 La. Ann. 61. The judgment will he reversed and the case remanded. Reversed and remanded.