as a receipt of payment of the particular indebtedness for which the check is issued; the nature of the transaction creating the indebtedness, as such and such goods sold or services rendered, being recited in the margin or elsewhere upon the paper. If the order to the bank to pay is conditional upon the signing by the payee of a receipt, it seems that the order is conditional, and that the instrument is not a check. If, however, the order is in such terms that the authority of the bank to pay is not made conditional upon the signature of a receipt, the instrument is a check, notwithstanding that the payee may voluntarily affix his signature to a writing that operates as a receipt.*

48

Payment in Money Only

47

Checks, like bills of exchange and promissory notes, must be payable in money; that is, legal tender. The principal question that has arisen under this rule is whether an instrument by its terms payable in "currency," or "in current funds," is a check. While some courts deny this,50 construing these terms as broader than mere legal tender, the preponderance of authority is in favor of construing the terms as equivalent to legal tender, and consequently in favor of holding such instruments to be checks.51

47 An order to pay "provided the receipt form at foot hereof is signed, stamped, and dated" is not unconditional, and not a check. Bavius v. London & S. W. Bank [1900] 1 Q. B. 270. See "Bills and Notes," Dec. Dig. (Key No.) § 4; Cent. Dig. §§ 22-25.

48 Where at the foot was written "the receipt at the back hereof must be signed, and signature will be taken as an indorsement of the check," and on the back was a form of receipt, the words at the foot not being addressed to the bankers and not affecting the order, the order to pay was said to be unconditional, and the check negotiable. Nathans v. Ogdens, 21 L. T. R. 775. See "Bills and Notes," Dec. Dig. (Key No.) § 4; Cent. Dig. §§ 22-25.

49 See Negotiable Instruments Law, § 1 (2)—"sum certain in money."

50 Bank of Mobile v. Brown, 42 Ala. 108 (currency); Dille v. White, 132 Iowa, 327, 109 N. W. 909 (current funds). See "Bills and Notes," Dec. Dig. (Key No.) §§ 11, 162; Cent. Dig. §§ 11–13.

51 Bull v. First Nat. Bank, 123 U. S. 105, 8 Sup. Ct. 62, 31 L. Ed.

Where the sum payable is expressed in both words and figures, the words control, if there be a discrepancy. 52

Where the amount is left blank, the person in possession has prima facie authority to fill in the blank, and a bona fide purchaser for value may enforce the check for that amount, even if the blank was filled in for an amount in excess of the actual authority. 53

Signature

56

A check must, of course, be signed by the drawer; 5 but the place of his signature is immaterial, provided it appears to have been intended for his signature.55 The signature may be in pencil, printed or stamped, and it may be by the drawer's mark; 57 but in all such cases it seems that the bank would be justified in refusing to pay a check without sufficient evidence that the signature was that of the drawer or his duly constituted agent.58

97; ante, p. 78. See Norton, Bills & N. (3d Ed.) p. 43. Negotiable Instruments Law, § 6, provides merely that "the validity and negotiable character of an instrument are not affected by the fact that it

designates a particular kind of current money in which payment may be made." See "Bills and Notes," Dec. Dig. (Key No.) §§ 11, 131; Cent. Dig. §§ 11-13, 310-315.

52 See Negotiable Instruments Law, § 17.

53 Under Negotiable Instruments Law, § 14, the blank must be filled up within a reasonable time. Madden v. Gaston, 137 App. Div. 294, 121 N. Y. Supp. 951. See, also, Rodgers v. Baker, 136 App. Div. 851, 122 N. Y. Supp. 91. See "Bills and Notes," Dec. Dig. (Key No.) 60; Cent. Dig. §§ 85-94.

54 See Negotiable Instruments Law, §§ 18, 126, 185.

55 See Palmer v. Stephens, 1 Denio (N. Y.) 471; Merchants' Bank v. Spicer, 6 Wend. (N. Y.) 443. See "Bills and Notes," Dec. Dig. (Key No.) 54; Cent. Dig. §§ 72-74.

56 See Geary v. Physic, 5 Barn. & C. 234; Reed v. Roark, 14 Tex. 329, 65 Am. Dec. 127. See "Bills and Notes," Dec. Dig. (Key No.) § 54; Cent. Dig. §§ 72-75.

57 See Pennington v. Baehr, 48 Cal. 565; Shank v. Butsch, 28 Ind. 19; Commonwealth v. Ray, 3 Gray (Mass.) 441; Brown v. Butchers' & Drovers' Bank, 6 Hill (N. Y.) 443, 41 Am. Dec. 755. See "Bills and Notes," Dec. Dig. (Key No.) § 54; Cent. Dig. §§ 72-75. 58 Post, p. 159.

LIABILITY OF DRAWER TO HOLDER

31. IN GENERAL-The drawer engages that on due presentment of the check to the drawee for payment it will be paid, and that if it be dishonored, and due notice of such dishonor be given to him, he will pay the amount to the holder.

32. PRESENTMENT AND NOTICE OF DISHONORA check must be presented within a reasonable time after its issue, and due notice of dishonor must be given, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay in presentment or in giving notice or by the failure to give notice; but the drawer will not be discharged by delay in presentment, or, unless it is otherwise provided by statute, by delay in giving notice of dishonor or by failure to give notice, unless he has suffered loss thereby. Presentment and notice of dishonor, and delay therein, are excused, where the circumstances exist which would operate as such excuse in respect to a bill of exchange.

33. REASONABLE TIME FOR PRESENTMENT-In determining what is a reasonable time, regard must be had to the nature of the instrument, the usage of the trade or business, if any, with respect to such instruments, and the facts of the particular case; but in the absence of a different usage, or of special circumstances, a check is not deemed to have been presented within a reasonable time, unless it be presented within the time limited by the following rules:

(1) If the payee or other holder to whom it is delivered and the bank are in the same place, it must be presented during business hours on the next business day after its receipt.

(2) If such payee or other holder of the bank are in different places, it must be forwarded on the next business day after its receipt to the place where the bank is located for presentment, and the agent to whom it is sent must present it during business hours on the next business day after its receipt by him.

In General

While a check is in the form of a bill of exchange, the same strict rules of diligence in respect to presentment and notice of dishonor are not required of the holder who may seek to charge the drawer. When a man draws a check, he should have money in the bank to meet it, and there it ought to remain until called for by the holder; and unless the drawer actually suffers from the delay, as by the intermediate failure of the bank, he has no reason to complain of delay on the part of the holder in calling for the money. If, however, the delay is unreasonable, and the drawer is prejudiced thereby, he will be discharged from his obligation, to the extent of his loss, but only to that extent.59 "A check must be presented for payment within a reasonable time after its issue, or the drawer will be discharged from the liability thereon to the extent of the loss caused by the delay." Thus, if the holder

59 Serle v. Norton, 2 Moody & R. 401; Robinson v. Hawksford, 9 Q. B. 52; Bull v. First Nat. Bank, 123 U. S. 105, 8 Sup. Ct. 62, 31 L. Ed. 97; In re Brown, 2 Story, 502, Fed. Cas. No. 1,985; Bowen v. Needles Nat. Bank (C. C.) 87 Fed. 430; Andrus v. Bradley (C. C.) 102 Fed. 54; Merritt v. Gate City Nat. Bank, 100 Ga. 147, 27 S. E. 979, 38 L. R. A. 749; Brown v. Schintz, 203 Ill. 136, 67 N. E. 767; Henshaw v. Root, 60 Ind. 220; Gregg v. George, 16 Kan. 546; Morrison v. McCartney, 30 Mo. 183; Cogswell v. Rockingham Ten Cents Savings Bank, 59 N. H. 43; Little v. Phenix Bank, 2 Hill (N. Y.) 425; Id., 7 Hill (N. Y.) 359; Cowing v. Altman, 79 N. Y. 167; Martin v. Home Bank, 160 N. Y. 190, 54 N. E. 717; Stewart v. Smith, 17 Ohio St. 82; Bell v. Alexander, 62 Va. 6; Kinyon v. Stanton, 44 Wis. 479, 28 Am. Rep. 601. See "Bills and Notes," Dec. Dig. (Key No.) § 404; Cent. Dig. §§ 1091-1103.

60 See Negotiable Instruments Law, § 186.

fails to present the check within a reasonable time, and the bank meanwhile becomes insolvent, so that the drawer loses the amount which he had on deposit to meet the check, the loss will fall on the holder, and the drawer will be discharged. If the bank should pay the drawer 50 cents on the dollar, so that he would lose only half the amount on deposit, he would be discharged only as to the amount lost."1 If he had no money on deposit to meet the check,62 or had withdrawn his deposit before presentment, even if the presentment had been unreasonably delayed, he would suffer no loss, and would not be discharged by the delay at all. And if the bank should fail, when there had then been no unreasonable delay in presentment, the loss would fall on the drawer, and he would not be discharged."

Reasonable Time

64

63

The general rule in determining what is a reasonable time is that regard is to be had to the nature of the instrument, the usages of trade or business, if any, with respect to such instruments, and the facts of the particular case.65 So far as concerns checks, however, the following rules have become established: (1) In the absence of special circumstances, where the person to whom the check is issued and the bank are in the same place, the time for presentment is limited to the next business day after the check is received; and (2) where the

61 Murphy v. Levy, 23 Misc. Rep. 147, 50 N. Y. Supp. 682. See, also, Williams v. Brown, 80 App. Div. 628, 80 N. Y. Supp. 247 (settlement by bank in full). See "Bills and Notes," Dec. Dig. (Key No.) 407; Cent. Dig. §§ 1110-1112.

62 First Nat. Bank v. Linn County Bank, 30 Or. 296, 47 Pac. 614. See "Bills and Notes," Dec. Dig. (Key No.) § 407; Cent. Dig. §§ 11101112.

6 Post, p. 117.

64 Haggerty v. Baldwin, 131 Mich. 187, 91 N. W. 150. Sec "Bills and Notes," Dec. Dig. (Key No.) 88 404, 407; Cent. Dig. §§ 10911103, 1110-1112.

65 See Negotiable Instruments Law, § 193.

• Alexander v. Burchfield, 7 Man. & G. 1061; Farwell v. Curtis, 7 Biss. 165, Fed. Cas. No. 4,690; Industrial Trust, Title & Savings