N. Holmes & Sons v. Briggs & Drum , 131 Pa. 233 ( 1890 )

Opinion,

Mr. Justice Stebbett:

When this case was here before, the judgment was reversed and a new venire ordered, solely because the learned president of the Common Pleas refused to submit to the jury the question, whether the cashier’s check was received as absolute payment of the Alexander & Co. draft, and directed them to find for plaintiffs. The facts sufficiently appear in the case as reported in 118 Pa. 283. On the last trial the question referred to was fairly submitted to the jury, and they, in effect, found that the check was accepted, not as absolute but as conditional payment of the draft. That finding of fact virtually left the defendants without any available ground of defence.

There was no error in refusing to charge as requested in defendants’ first point, viz.: “ That the acceptance by plaintiffs from defendants of the cashier’s check of Penn Bank, drawn to plaintiffs’ order, for the amount of the draft of Alexander & Go., and the delivery to defendants of said draft, followed by failure on the part of plaintiffs to notify defendants of the dishonor of said cashier’s check, and the retention of said check until the present time, and collection of dividends on account thereof, is a bar to plaintiffs’ right to recover in this suit.”

Ill saying to the jury that'the facts recited in thakpoint were for their consideration in determining the question submitted to them, the learned judge went as far as he was warranted in doing. Nothing is better settled than that, in the absence of any special agreement to the contrary, the mere acceptance, by a creditor from his debtor, of the note or check of a third person, to the creditor’s order, for a pre-existing indebtedness, is not absolute but merely conditional payment, defeasible on the dishonor or non-payment of the note or check, and, in that event, the debtor remains liable for his original debt: McGinn v. Holmes, 2 W. 121; McIntyre v. Kennedy, 29 Pa. 448; Brown v. Scott, 51 Pa. 357; League v. Waring, 85 Pa. 244; Hunter v. Moul, 98 Pa. 13; Canonsburg Iron Co. v. Union N. Bank, 34 Pittsb. L. J. 93; Benj. on Sales, §§ 1082, 1083; 2 Pars. on Notes & B., 184, 185. The evidence of defendants tending to show that the check was received as absolute payment of the draft was submitted to the jury, but their finding was in favor of plaintiffs. '

Defendants’ fourth point was rightly refused. The facts therein recited were exclusively for the consideration of the jury, to whom they were properly submitted.

In view of the evidence, there is no error in the portions of the charge covered by the third and fourth specifications. It is contended that the learned judge erred in confining the jury to the consideration of the single question, “Was the cheek given and received as money ? ” and in charging that the burden of proving it was so received was on defendants. As to the burden of proof, he was clearly right. The question of fact, to which the attention of the jury was specially directed, was the only issue presented by the evidence. If there had been any testimony tending to show that defendants were in any way injured by the failure of plaintiffs to promptly give notice of nonpayment of the check, etc., it would have been error to have excluded it from the consideration of the jury; but there was none. The defendants were not parties to the check, either as drawers, payees, or indorsers. According to. the law merchant, they were not strictly entitled to notice of dishonor, and have no just reason to complain of delay in giving them notice, unless they were prepared to show that they had actually sustained loss or damage by the omission of plaintiffs to notify them : Benj. on Sales, supra; Hunter v. Moul, supra; 2 Pars, on Notes & B., 184. It is there said: “If paper be transferred, by delivery only, as security for a pre-existing debt, and it is dishonored while in the transferee’s hands, it affects in no way the debt it was intended to secure. The original liability remains wbat it was; and upon dishonor of the paper, it was not even necessary to give him notice thereof as an indorser. The authorities are somewhat confused on that point; but the rule of law is, undoubtedly, that tbe debtor is not entitled to any technical notice, but may show, in defence, any injury be has sustained by tbe actual laches of the creditor.”

We fail to discover any error in tbe trial of which appellants have any just reason to complain. Neither of the specifications of error is sustained.

Judgment affirmed.