American Express Co. v. Grillis

Anderson, J.,

delivered the opinion of the court.

Appellee, Theodore Grillis, filed his bill in the chancery court of Hinds county against appellant, American Express Company, by which he sought to have appellant issue to him a duplicate of a lost check for one thousand dollars theretofore purchased by him from appellant, or in lieu of such duplicate check to recover the thousand dollars. The cause was heard on bill, answer and proofs, and decree was rendered in favor of appellee for one thousand dollars, conditioned upon appellee executing a bond of indemnity in that sum payable to appellant with sufficient sureties to be approved by the clerk of the chancery court, such bond to run for a period of one year from the date 'of the decree.

Appellee on the 21st of December, 1923, purchased from appellant at its Jackson office in this slate a check for one thousand dollars for which he paid that sum. The check was addressed to appellant’s New Orleans, La., office and directed that office:

“On presentation of this check pay from our credit balance one thousand dollars to the order of Theodore Grillis.”

The check was duly signed by the appellant company by its agent at Jackson, and countersigned by its treasurer. The caption at the top of the check is “American Express Company Check.” And just below that is this indorsement on the check:

‘ ‘ This .check must be presented for payment promptly, and within a reasonable time after the date of issue, or the drawer will be discharged from liability thereon.”

With this check appellant delivered to appellee a receipt showing its issuance, date, amount, etc., on the back of which receipt there was an agreement between the parties in four paragraphs, one of which (the 3d) was in this language:

“(3) In the event this check is lost, stolen, or destroyed, no refund will be made until the claimant has furnished to the American Express Company a bond of indemnity satisfactory to that company.”

Appellee lost the check in question, and was unable to find it. He thereupon demanded of appellant either a duplicate of the lost check or the repayment to him of one thousand dollars, the amount he paid therefor. Appellant declined to comply with appellee’s demand until the latter should execute an indemnity bond as provided by paragraph 3, copied above, of the agreement attached to the receipt given him by appellant. Appellant tendered appellee a form of indemnity bond to be executed by him. Appellee declined to execute any bond, and thereupon filed the bill in this cause.

Appellant assigns and argues principally two alleged errors in the decree appealed from, namely, that the'life of the indemnity bond should not haye been limited to a period of one year, and that the bond should have been in a greater sum than one thousand dollars so as to cover any necessary expenses which appellant might incur on account of the loss of the check. The check on its face gives notice to all persons dealing therewith that it must be presented for payment promptly and within a reasonable time from the date of its issue, or the drawer will be discharged from liability. The check was dated the 21st of December, 1923. It had not been heard from when this cause was tried in the court below, which was in September, 1924. The stipulation providing for the indemnity bond is reasonable and should be enforced. But to require of appellee a perpetual indemnifying bond in view of such notice on the face of the check would be unreasonable.

We will not undertake to define what it takes to constitute prompt presentment or presentment within a reasonable time as provided by the notice. But we see no reason why that provision in the check is not valid and binding on the parties. The facts of each case would determine what would be prompt presentment or presentment within a reasonable time.

We hold that the trial court committed no error in limiting the life of the indemnity bond required. We are of opinion that the bond should run for twelve months from the date of judgment in this court.

We think, however, that the court below erred in not ■ requiring an indemnifying bond in a greater sum than one thousand dollars. If the check should turn up and be wrongfully paid by appellant, and appellee should be insolvent, one thousand dollars would be the least loss appellant would thereby suffer. Appellee should be required to give an indemnifying bond in sufficient amount to cover the face of the lost check and also any necessary expense appellant might be put to as a result of its loss and presentment for payment. We think a bond in the sum of one thousand three hundred dollars would be sufficient to cover the whole. Final judgment will bfe accordingly entered in this court.

Affirmed in part, and reversed in part, and judgment here,