Day-Luellwitz Lumber Co. v. Serrell , 1913 Ill. App. LEXIS 1128 ( 1913 )

Mr. Justice Brown

delivered the opinion of the court.

The law of Illinois recognizes an accord and satisfaction by the payment and acceptance of a less sum than that due, if there be a bona fide dispute as to the sum which should be paid by the debtor to the creditor. Hayes v. Massachusetts Mut. Life Ins. Co., 125 Ill. 626; Ostrander v. Scott, 161 Ill. 339; Lapp v. Smith, 183 Ill. 179; Canton Union Coal Co. v. Parlin & Orendorff Co., 215 Ill. 244.

If the less sum is sent in a check or draft of the debtor, with the statement that it is in full of the account, and the creditor reduces it to money, he will be held to have acceded to “the accord and satisfaction.” If he is not willing to take the lesser sum in full, he must return the check without using it. This seems to be the law of Illinois as declared by the Supreme Court. Ostrander v. Scott, supra; Lapp v. Smith, supra; Canton Union Coal Co. v. Parlin & Orendorff Co., supra; Stan v. Regelin, 147 Ill. App. 550.

The case at bar turns entirely on two questions. The first is whether, when the check' or draft, sent on these conditions by the debtor to the creditor is not that of the sender, but a bank draft or cashier’s check drawn by one banking institution on another, the retention for an unreasonable time of the same by the creditor, without presentation, but without notice to the debtor that it is repudiated or any offer made to return it, is equivalent to the use of it. This question we answer in the affirmative. A draft or check of any third person and a fortiori of a banking institution is not the same thing in fact, and we do not think it is the same thing in law, when so sent, as the debtor’s own check or draft. In the case of the sender’s own check or draft, it is but his order on funds which can not be disturbed or withdrawn from his control and use until it is presented; but if it be a cashier’s check it is something for which the debtor has paid consideration and which has tied up out of his use and control the amount which he paid or is charged for it unless and until it is returned to him. Therefore, while it may well be that some affirmative use of the debtor’s check or draft may be necessary to bind the creditor, the mere neglect or refusal promptly to return the check of a third party, and thus place the debtor in statu quo, might with equal reason be held to foreclose such a creditor from subsequent action. The return of the cashier’s check after an unreasonable delay practically changes the condition of things no more than would the voluntary refunding to the debtor after the same length of time of the amount for which his own check had been cashed promptly on reception.

This was also the theory on which the case was submitted to the jury by the judge below. Although we should differ from the implication made in his instructions, that it was entirely a question of intention, but that the intention must be inferred from an unreasonable retention, and deem the more accurate statement to be that although there was no intention on the part of the creditor at any time to receive the draft in question as full payment, the law would hold that he had so taken it if he had retained it an unreasonable time without repudiation; yet this difference in statement would lead to no practical difference in the disposition of the cause.

The whole practical effect of the court’s instructions under the evidence was to leave to the jury the single question: Did the defendant in error retain the bank draft in question an unreasonable time without repudiating or returning it? And the second question, on which this writ of-error turns is, whether this question was one of fact for the jury or of law for the court. In answering this question we are constrained to differ from the learned judge below and from counsel for defendant in error.

While it is true, as has been said, that “to give a specific meaning to the word ‘reasonable’ is like trying to count what is not number and measure what is not space;” Altschuler v. Coburn, 38 Neb. 881, 890.

And that “reasonable is a relative term and the facts of the particular controversy must be considered before the question as to what constitutes a reasonable delay can be determined;” In re Nice v. Schreiber, 123 Fed. 987, 988.

Tet we think that the' weight of authority supports the proposition that when the facts of a case are clearly established or undisputed—a condition which we think practically exists in this case—the question of what is a reasonable time within which an act should have been done becomes a question of law. Hill v. Hobart, 16 Me. 164, 168; Morse v. Bellows, 7 N. H. 549; McFadden v. Henderson, 128 Ala. 221, 230, 231; Hickman v. Shimp, 109 Pa. St. 16, 20.

If it was a question of law in this case for the court below, it is a question for us to decide here, and in doing so to dispose finally of the cause.

No questions of fact exists in it. It depends on the application of the law to undisputed facts.

The defendant in error is not shown to have intended to accept in full settlement the bank draft sent to it by the plaintiff in error, but it received it and held it practically three months and a half at least without returning or offering to return it or notifying the plaintiff in error of an intention or want of intention to accept it as the settlement it was insisted by the plaintiff in error that it must be, if accepted.

In our opinion the court below, with this state of thing’s clearly established, might consistently have instructed the jury peremptorily for the plaintiff or for the defendant, accordingly as he held this three months and a half a reasonable or an unreasonable time for the retention of the draft. We think he should have held it an unreasonable time and instructed the jury therefore peremptorily for the defendants. We hold it an unreasonable time under the circumstances of this case. To hold it reasonable would be against all the analogies of the law of negotiable paper. A check or draft of this sort is not intended for indefinite circulation or hoarding. It is supposed to be negotiated promptly or presented promptly. If held but a short time even, the holder incurs the risk of the intermediately accruing insolvency of the drawee and drawer. The neglect of the defendant in error to return or act in any way on the draft was equivalent in its effect on the plaintiff in error to cashing it, holding the money for three months or more and then offering to return it. The defendant in error must be held to have accepted the draft in payment of its account against the plaintiff in error, and the jury should have been so instructed.

The judgment of the Municipal Court is therefore reversed.

Reversed.