Hogue v. Edwards , 1881 Ill. App. LEXIS 126 ( 1881 )

Peb Curiam.

In the petition for a re-hearing it is assumed that the check left by Neil with the plaintiff in error, was in. tended by them to be placed there for the benefit of defendants in error, absolutely and without reservation. That the money represented by the check being the money for the defendants in error, in the hands of the plaintiff in error, they could sue for and recover the same unless plaintiff in error can show he paid the draft which had been delivered by Neil.

■The fallacy of this position consists in the erroneous assumption that the money represented by the check and for which the Chicago draft was drawn, was deposited for the benefit of defendants in error. The real transaction was not as supposed. Neil did not intend to make a deposit of check or money with plaintiff in error for the defendant’s in error benefit, but intended to keep the matter under his control until he should pay the amount, if he ever did, to defendants in error. Nor did the plaintiff in error suppose that he was becoming the mere custodian of this amount of money for them. The drawing of the check by Neil, and issuing of the draft by plaintiff in error and its delivery to the former by him, was all one and the same transaction, and only indicated that Neil was taking certain preliminaiy steps preparatory to paying defendants in error by sending them the Chicago draft. The transaction was wholly between them, in which defendants in error had no part or privity. Neil was not the latter’s agent, and after he took the check at any time prior to its actual delivery to them, could change his mind and refuse to send it, and re-deliver it to the plaintiff in error from whom he obtained it, and in fact he had promised the appellant to take care of its payment.

If Neil found he was unable to take care of its payment, good faith required that he either should return it or not send it. Plaintiff in error was simply lending him his credit. If Neil changed his mind he might return it to the former and demand the cancellation of the temporary charge made for it on the bank books.

The plaintiff in error had opened no account with the defendants in error on account of this money or check, and did not know them in the transaction, further than it was the intention of Neil to send the draft.

When Neil failed to send the draft, it was manifestly bis intention not to pay the defendants in error. It is true he did not return the draft, and for the reason that the draft was never delivered; it was in law never executed, and was a nullity. The book account between Neil and the plaintiff in error was then subject to readjustment, and the charge for the draft should have been cancelled. The mere fact that the defendants in error were named in the check upon which the draft was drawn, could make no difference. It amounted to no more than if Neil had drawn his check for so much money, and had taken the draft instead, which according to the custom of banking is often done.

A check is drawn for money and a draft taken payable to a third party, and if the draft is used upon posting up the customer’s account the check is returned to him cancelled. It is merely the means of keeping the account between the customer and the bank. If the draft is not used by the customer he has the undoubted right to have a credit for the amount charged over against the original amount charged for the draft or check. We cannot think that on any principle of justice or law the debtor of the bank’s customer could be allowed to hold the bank responsible to pay him the amount represented by such draft in case the draft was not sent to the payee.

There is no privity of contract, either express or implied, between such bank and the creditor of the bank’s customer. If this action can be maintained, it must be on the ground that it was the absolute intention of Neil to leave this money on deposit with plaintiff in error for defendants in error, and of plaintiffs in error’s acceptance of it for that purpose.

But as it was not the intention of these parties, and Neil being largely indebted to plaintiff in error on book account, over and above the sum in question, it would be in no wise be equitable to compel him to pay defendants in error this large sum, and force him to lose his own claim to that amount. It could not even be done on garnishee process. This is said with reference to the case as prevented by the record, under election made in open court by defendants in error to rely on the check as a basis of recovery. We still adhere to the views we expressed in our former opinion, that no recovery can be supported on such ground.

' The instructions given by the court in behalf of defendants in error, and based upon the right of recovery upon this check, were erroneous and should not have, been given.

Whether defendants in error can recover on any other grounds does not properly arise upon this record. We therefore overrule the petition for are-hearing, and refuse to amend or change our former judgment.

Re-hearing denied.