Way v. Towle , 155 Mass. 374 ( 1892 )

Morton, J.

The question in this case is whether the instrument declared on is a check or a bill of exchange. If the former, it had no days of grace; if the latter, it had, and demand was prematurely made, and the indorser is not liable. The question whether a check made payable on a day subsequent to its date should be regarded as a check or as a bill has been decided differently in different jurisdictions. In re Brown, 2 Story, 502. Champion v. Gordon, 70 Penn. St. 474. Westminster Bank v. Wheaton, 4 R. I. 30. Ivory v. Bank of Missouri, 36 Misso. 475. Henderson v. Pope, 39 Ga. 361. Morrison v. Bailey, 5 Ohio St. 13. Minturn v. Fisher, 4 Cal. 35, 36. Bowen v. Newell, 3 Kernan, 290. In the present case the instrument appears to be upon one of the ordinary printed blanks of the bank on which it is drawn. It is dated August 31, 1889, and the only difference that is suggested between it and an ordinary check is that it is made payable October 1,1889. If it had been post-dated as of that date, it would not have been payable till then, and yet would in that case have been a check. It has all the other characteristics of a check, and we cannot believe that it was intended by the parties, or would have been taken by the bank on which it was drawn, as anything else than a check. It is often convenient to make a check payable at a future day, and we see no valid distinction between post-dating it and making it payable at a subsequent date. In the latter case, as in the former, it is expected that it will be presented on the day when payable, which, in the one instance, would be the day of its date, and in the other the day fixed for its payment, and that there will be funds.to meet it, and that it will then be paid. And neither in the latter case any more than in the former would it be expected that the holder would present the check to the bank on which it was drawn for acceptance before payable, and, on its refusal to accept it, protest it and bring suit forthwith against the drawer for the non-acceptance.

We think it better accords with the intent and understanding of the parties, and of bankers and business men generally, to treat the instrument in suit as a check rather than as a bill of exchange, and we see no valid objection to doing so.

Exceptions overruled.