DocketNumber: Docket No. 1017a
Citation Numbers: 133 A. 742, 99 Vt. 255
Judges: BUTLER, J.
Filed Date: 12/5/1925
Status: Precedential
Modified Date: 1/13/2023
The action is tort for the recovery of the amount of a certain check for $1,500 made by the defendant, and payable to the plaintiff or order. The case comes here on plaintiff's exception to the sustaining of the demurrer to the complaint.
The action is based on G.L. 6888, which provides that "Any person who makes, draws, utters or delivers a check, draft or order for the payment of money upon any bank or other depository, knowing at the time of such making, drawing, uttering or delivery that the maker or drawer has not sufficient funds in or credit with such bank or other depository for the payment of such check, draft or order, in full upon its presentation, and which is not paid in full upon presentation, shall be liable to an action of tort, on this statute, to the person injured thereby and for want of property, the body of the person so making, drawing, uttering or delivering such check, draft or order may be attached."
The check in question bore date January 7, 1924, and was made and delivered to the plaintiff by the defendant December 22, 1923. The principal question raised by the demurrer is whether, as between the maker and the payee, the statute applies to a postdated check.
A postdated check is one that is made and delivered at some time prior to the day of its date. It is generally held to be payable at sight or upon presentation at the bank at any time on or after the day of its date. Morse on Banks, Vol. 1, § 389; 5 R.C.L. 515, par. 36; Mohawk Bank v. Broderick, 43 Wend. (N.Y.) 133,
It is not to be believed that the Legislature intended to abolish the use of such checks, or make their use necessarily wrongful. If the statute is construed to apply to such a check, it has just that effect and would render the maker of most, if not all, such checks liable to a body action.
Without the use of language that would make such intention unmistakable, such construction should not be placed upon it. The rules of construction do not require it. Wlock v. Fort DummerMills,
In reaching this conclusion we get little aid from the adjudged cases. The statutes under which such cases have arisen are penal or criminal, while ours is remedial only. The case most relied upon by the plaintiff is Kansas v. Avery,
The second count, containing a copy of the checks, is the same in effect as the first.
Judgment affirmed and cause remanded.
WATSON, C.J., dissents, and thinks that since the statute is remedial and is to be given a liberal construction, it should be held to include postdated checks.
People v. Bercovitz , 163 Cal. 636 ( 1912 )
State v. Stout , 8 Ariz. App. 545 ( 1968 )
Wilson v. Lewis , 165 Cal. Rptr. 396 ( 1980 )
State v. Beard , 197 Kan. 275 ( 1966 )
Commonwealth v. Kelinson , 199 Pa. Super. 135 ( 1962 )
North Adams Beef Produce Co. v. Cantor , 103 Vt. 514 ( 1931 )
Lacroix Frere v. Eaton , 99 Vt. 262 ( 1925 )