Sieverts v. White , 2 Utah 2d 351 ( 1954 )

CROCKETT, Justice

(concurring in result).

The judgment of the trial court can be sustained upon the basis that inasmuch as defendants had stated an objection to payment by check on the very day in which the tender was prepared, and plaintiffs knew or should have known that the offer of their check would be an idle ceremony, it was not incumbent upon defendants to renew their objection to the form of tender when it was made. Under such circumstances, where timely objection had been made to payment by check, the court was justified in finding that the offer of a check was not a valid tender of payment.¹ The trial court having so found, the tender would not have been good no matter how much money there had been in the bank to cover it. It therefore seems immaterial whether there were sufficient funds to cover the check at the time it was drawn.

Beyond the foregoing it seems unnecessary in this case to pass on the legal sufficiency of tender. Lest there be any misunderstanding, I wish to point out that the case of Hirsh v. Ogden Furniture & Carpet Co.² does not appear to stand for the proposition that tender by check cannot be good unless funds are in the maker’s account at the time of tender. That question was not there passed on. That there were funds in the bank was not questioned, and the court referred to this fact not as a necessary element for a valid tender by check, but rather recited it as an accompanying circumstance. Likewise, Cole v. Cole³ does not rule on that point. The Cole case dealt with the right of a creditor to recover interest on his money from the time an indebtedness became due to the time of its payment where tender by check had been made but sufficient funds had not been maintained. The majority of the court concluded that interest could be had on the indebtedness unless the debtor continuously kept sufficient funds in the bank to cover the check. Without reference to the soundness of that decision, it is here noted that the question of the legal sufficiency of the tender itself was not decided.

Further I think it unnecessary under the facts of this case to rule as to whether it is essential that sufficient funds be maintained in an account continuously after a check is drawn in order that it may be a valid tender. Though the practice may not be one to be commended, it is not uncommon, in various types of financing of business transactions, to write a check with the expectation of transferring funds or credit from one account to another, or arranging credit with the bank, or depositing money to cover commitments, if and after, a check is accepted. If such a check were refused there would he no practical use of arranging for the money or credit to cover it. This might entail considerable inconvenience, difficulty or even hardship, to no useful purpose. Serious injustices might result if the offeree in such a transaction could defeat proof of tender simply by showing that the offeror had not sufficient funds in the bank to cover the check at the time it was offered.

The offeree, of course, has a right to reject the tender by check when it is made. This is perfectly proper if he states the ground of his objection, but it is only reasonable that the person making a tender has a right to know the ground of the objection, so that if it be well taken he may protect himself by conforming thereto within the required time. If the offeree has failed to state an objection, or objects on other grounds, it would be manifestly unfair to permit him to defeat proof of tender by check on the sole ground that there were not sufficient funds to cover the check at the time the tender was made, because the offeror may have arranged for payment of the check if it had been accepted. This reasoning is reflected in our ’statute whidh ré-quires the person to whom a tender is made to “specify any objection” he 'has therbt'o tor be “deemed to have waived it”.⁴

I concur in affirming the judgment.

McDONOUGH, Chief Justice, concurs in the views expressed by.CROCKETT, J.

1 . 23 A.L.R. 1284; Minsky v. Zieve, 255 Mass. 542, 152 N.E. 41, 51 A.L.R. 393, 394; 52 Am.Jur. 229. The right to object to a tender by check may he waived if the tenderee does not at the time specify his objection. § 78-27-3, U.C.A.1953; Hirsh v. Ogden Furniture & Carpet Co., 48 Utah 434, 160 P. 283.

2 . 48 Utah 434, 160 P. 283.

3 . 101 Utah 355, 122 P.2d 201.

4 . U.C.A.1953, § 78-27-3.