Burkhalter v. . the Second Nat. Bank , 40 How. Pr. 324 ( 1870 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The plaintiffs were bound to demand payment of the first draft on the day they received it (March 26) or the next day (March 27), and they had the right to hold it until the 27th. The draft being payable on demand, they were bound to use reasonable diligence in demanding payment, and a demand on the same day, or the next day, is, in the law, a demand within a reasonable time. (Chitty on Bills, 377; Spring'fd ed. of 1842; Harker v.Anderson, 21 Wend., 372; Smith v. Jones, 20 Wend., 192;Benton v. Martin, 31 N.Y., 385; Merchants' Bank v.Spicer, 6 Wend., 443; Hazleton v. Colburn, 2 Abb. N.S., 199.)

It was sufficient to give the notice of demand and refusal on the next day, the 28th of March. (Farmers' Bank of Bridgeport v. Vail, 21 N.Y., 485; Howard v. Ives, 1 Hill, 263.)

Therefore, in demanding payment of this draft on the 27th and mailing notices of non-payment on the 28th, the plaintiffs did all that the law required of them, and the defendant was charged as drawer of the draft, unless it was discharged by what took place on the 26th. On that day the draft was neither paid nor refused to be paid. Culver, Penn Co. gave their check for it, and the check was in due time, the next day, in the ordinary course of business, through the clearing-house, presented for payment and payment refused. There was no agreement to receive the check in payment. It was taken by the plaintiffs in the usual course of business, they believing that it would be paid. They, then, on the 27th, returned the check and reclaimed the draft, and demanded payment upon it. The check did not for a moment operate as a payment of the draft, and the whole transaction does not show the absence of any diligence, which the defendant had a right to demand of the plaintiff. It is settled that, upon precisely such a state of facts, the drawer and indorser of a draft are not discharged. (Johnson v. Bankof North America, 5th Robertson, 590; Smith v. Miller, 6 Robt., 157, 413; Turner v. Bank of Fox Lake, 3 Keyes, 425.) Without a critical examination of earlier cases, I propose to rest the decision of this case upon the authority of the case last cited. The facts of the two cases are as nearly alike as they can be, and the principle involved is precisely the same. The judgment must, therefore, be affirmed.

For affirmance, EARL, Ch. J., GROVER, HUNT, INGALLS and SMITH, JJ. For reversal, FOSTER and LOTT, JJ.

Judgment affirmed.