Columbian Banking Co. v. Bowen

Maeshall, J. Counsel for appellant bave presented quite an extended argument, referring to many authorities, as to tbe law antedating and independently of tbe negotiable instrument statute — secs. 1675 to 1684 — 6, Stats. (Supp. 1906; Laws of 1899, cb. 356) — to support tbe proposition that appellant was released from liability on the instrument in question, because of tbe period intervening between bis parting therewith and tbe presentation thereof to the drawee for payment. Such statute was enacted for tbe purpose of furnishing, in itself, a certain guide for tbe determination of all questions covered thereby relating to commercial paper, and, therefore, so far as it speaks without ambiguity as to any such question, reference to case law as it existed prior to tbe enactment is unnecessary and is liable to be misleading. Tbe negotiable instrument law is not merely a legislative codification of judicial rules previously existing in this state making that written law which was before unwritten. It is, so far as it goes, an incorporation into written law of tbe common law of the state, so to speak, tbe law-merchant generally as recognized here, with such changes or modifications and additions as to make a system harmonizing, so far as practicable, with that prevailing in other states. That it con [222] tains some quite1 material changes in previous rules governing commercial paper we have had occasion heretofore to point out. Hodge v. Smith, 130 Wis. 326, 110 N. W. 192; Aukland v. Arnold, 131 Wis. 64, 111 N. W. 212. The primary question discussed by appellant’s counsel, it is believed, is fully covered by the negotiable instrument law. There are a multitude of decisions regarding the character of a bill of exchange and that of a check, as those terms are used in business transactions, and to what extent the incidents of one are identical with those of the other, which decisions are so variant in their phrasing of the matter as to produce more or less confusion in respect thereto with many apparent, and some real, conflicts, to remedy which was one of the principal objects of the law. To that end it was provided in sec. 1680, “A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or bearer,” and it was further provided in sec. 1684 — 1, “A check is a bill of exchange drawn on a bank, payable on demand.” As to whether the incidents of the species of bills of exchange last mentioned are the same as those of bills of exchange generally, it was further provided in thet section last referred to, “Except as herein otherwise provided, the provisions of this act applicable to a bill of exchange payable on demand apply to a check.” The only p^qp^ipn referred to material to this case is contained in ]sec; fbM — 2,1 in these words: “A check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.” Keeping in mind that the discharge from liability, above referred to because of unreasonable delay after the issuance [223] of a check in presenting it for payment is of the drawer only, and that this action is against the payee who indorsed the instrument in question without qualification and put it in circulation, we turn to(sec. 1678 — 1, which provides, as to a hill of exchange payable on demand, which from the foregoing obviously includes a check or draft on a bank of the character of the one in question, “presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof.” x From the foregoing it seems plain that as regards the payee of such an instrument as we have here, who puts the same in circulation with his unqualified indorsement thereon, and all subsequent parties thereto so indorsing the same, presentment for payment is sufficient, as regards their liability, if made within a reasonable time after the last negotiation. A bill of exchange payable on demand, regardless of its character, put in circulation, so long as its circulating character is preserved may be outstanding without impairing the liability of indorsers thereof. Formerly the length of time within which a bill of exchange might circulate without impairing such liability was more or less uncertain, rendering it very difficult to determine any one case by the decision in another. That difficulty was removed, so far as practicable, by the provision that only the time need be considered intervening between the last negotiation and the presentment. That is recognized as a, radical change in the law as it formerly existed. Selover, Neg. Inst. Law, § 195. As to an ordinary bill of exchange put in circulation, it was quite anciently held that the period between July 18th of one year and January 16th of the next year was not necessarily unreasonable. Gowan v. Jackson, 20 Johns. 176. Perhaps one might now keep a bill of exchange for such length of time as to destroy its circulating character notwithstanding he ultimately passed it along to another person, but that situation, as we view the case, does not exist here. [224] Applying the law as aforesaid to the facts of this case it is readily seen that the delay in presenting the paper for payment between its date and the negotiation to the bank at San Erancisco is immaterial. Appellant unqualifiedly indorsed the paper and put it in circulation by sending it to Tabbert at a distant part of the country, probably knowing that he was a traveler. Tabbert received the paper while journeying with the intention of going to San Erancisco and held it till he arrived there and then negotiated it. It was promptly presented for payment thereafter and so in time, as regards that circumstance, to preserve the liability of appellant. The court decided, as indicated, that Tabbert was a traveler with San Erancisco as his destination and properly held that such circumstance sufficiently explained, if any explanation were necessary, the lapse of time between his reception of the paper and his negotiation thereof, preserving its circulating' character and warranting the finding that the respondent came thereby in due course. The point is made that the instrument was not presented to the drawee for payment during banking hours. The negotiable instrument law at sec. 1678 — 2 provides that “Presentment for payment, to be sufficient, must be made: ... at a reasonable hour on a business day. . . ” The evidence shows that the paper, after taking its course through the clearing house, was presented to the drawee for payment on the afternoon of the same day between the hours, of 3 and 6 o’clock. The' proof is to the effect that such was the customary way of doing such business in Chicago, where the drawee was located. That is, as we understand it, the business day of the bank continued after the dosing of the clearing-house transactions so as to enable banks, holding paper for collection, refused recognition in such transactions, to present the same for payment as was done in this case. That satisfies the statute. What constitutes business hours of a [225] bank, within tbe meaning of tbe statute, bas reference to tbe general custom at tbe place of tbe particular transaction in question. In case of a transaction occurring in a foreign jurisdiction, as in tbe instance in question, tbe court cannot take judicial notice of wbat constitutes reasonable hours on a business day. 1 Daniel, Neg. Inst. (5tb ed.) § 601. It is a matter of proof, tbougb in case of tbe notarial certificate of tbe transaction, as bere, being regular so as to fumisb prima facie proof that tbe paper was duly presented for payment, that raises tbe presumption that tbe presentment was made at a proper time. Cayuga Co. Bank v. Hunt, 2 Hill, 635. By the Court. — Judgment affirmed?