Ivory v. Bank of State , 36 Mo. 475 ( 1865 )

Lovelace, Judge,

delivered the opinion of the court.

” The first question in this case is, whether the instrument, which forms the basis of the action, is a bill of exchange, and as such entitled to days of grace. Kent has defined a bill of exchange to be “ a written order or request, by one person to another, for the payment of money, absolutely and at all events.” (Kent’s Com. § 44, p. 74.) Story says of this definition that “ its peculiar distinguishable quality in modern times, its negotiability, is omitted”; and he, accordingly, adopts the definition of Mr. Kyd, which states it to be “an open letter of request addressed by one person to a second, desiring him to pay a sum of money to a third, or to any other to whom that third person shall order it to be paid, or it may be payable to bearer.” (Sto. on B. Ex.)

The instrument in question is addressed to the Southern Bank of Saint Louis, and requests it to pay to M. O. Jackson & Co., or order, five hundred dollars, on the 22d of October, and signed by E. Webre & Co. It seems, then, exactly to fall within the above definition of a bill of exchange.

At common law, all bills of exchange and drafts for money, except those payable on demand, (or where no time for payment was specified, and they were construed to be payable on demand,) were entitled to three days of grace. Our statute makes these payable at sight, or on demand — payable when presented, without days of grace ; and, with 'this qualification, all bills are entitled to grace. This bill is neither payable at sight nor on demand, but on a day certain; and it was therefore entitled to grace, and it was negligence to present it before grace had expired.

As to whether the bank was accustomed to dealing in this kind of paper, is a matter of no importance. It was a species of paper that banks are generally in the habit of dealing in, and the offieers of the bank did, in point of fact, undertake to collect this particular bill, and it was clearly its duty to use proper diligence and present it for payment on the ■ proper day, after days of grace.

There was no error in refusing instructions numbered 1, 3, 4 and 5, asked by defendant. Instructions numbered 2 and 6 properly set out the law of the case. As to whether the plaintiff might have had the check presented in 'time after he received notice of the protest, is sufficiently set out in instructions numbered 6. He plainly would not have it presented before it was returned to his possession, and all he could do was to use due diligence after he received it.

The judgment is affirmed.

The other judges concur.