89

udiced thereby. He is at most entitled only to such presentment and notices as will save him from loss. Notice should be given, however, within a reasonable time, so as to enable the drawer to take steps to protect himself. If such notice is not given, and he is prejudiced, he will be discharged to the extent of the loss caused by the delay or failure.9°

The Negotiable Instruments Law, while it provides that the failure to present a check for payment within a reasonable time will discharge the drawer only to the extent of the loss caused thereby,91 fails, apparently by an oversight, to provide expressly for the effect of failure to give due notice of dishonor when the check has been presented and not paid. The result of this omission appears to be that the liability of the drawer, under that law, is governed by the general provision that, "when a negotiable instrument has been dishonored by * nonpayment, notice of dishonor must be given to the and any drawer to whom such

*

92

*

drawer, notice is not given is discharged." "2 Protest, at least when the check is not in the form of a

rence v. Schmidt, 35 Ill. 440, 85 Am. Dec. 371; Offutt v. Rucker, 2 Ind. App. 350, 27 N. E. 589; Lester v. Given, 8 Bush (Ky.) 357; Exchange Bank of Wheeling v. Sutton Bank, 78 Md. 577, 28 Atl. 563, 23 L. R. A. 173; Spink & Keyes Drug Co. v. Ryan Drug Co., 72 Minn. 178, 75 N. W. 18, 71 Am. St. Rep. 477; Stewart v. Smith, 17 Ohio St. 85; post, p. 118. See "Bills and Notes," Dec. Dig. (Key No.) § 416; Cent. Dig. §§ 1164–1177.

89 For provisions governing notice, see Negotiable Instruments Law, 88 89-108.

90 Henshaw v. 51 Am. Dec. 135; Notes," Dec. Dig.

Root, 60 Ind. 220; Pack v. Thomas, 21 Miss. 11, See, also, cases supra, notes 87, 88. See "Bills and (Key No.) § 418; Cent. Dig. §§ 1194, 1195.

91 Negotiable Instruments Law, § 186.

92 Negotiable Instruments Law, § 89. Cf. § 185. See Cassel v. Regierer (Sup.) 114 N. Y. Supp. 601; Kuflick v. Glasser (Sup.) 114 N. Y. Supp. 870. See "Bills and Notes," Dec. Dig. (Key No.) § 395; Cent. Dig. §§ 996-1021.

foreign bill of exchange, is unnecessary; 3 but in most jurisdictions, by statute, protest is permissible."*

Excuses for Failure to Present and Give Notice

The circumstances which will excuse the holder of a check for failure to present it for payment, or for delay in presentment, are in general the same as those which excuse like failure to present a bill of exchange. Presentment is dispensed with where after the exercise of reasonable diligence it cannot be made,95 and where presentment is waived.96 Delay is excused where it is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct, or negligence, and, where the cause of delay ceases to operate, presentment must be made with reasonable diligence.98 Presentment is not required to charge the drawer, where he had no right to expect or require that the drawee would pay

93 Wittich v. First Nat. Bank of Pensacola, 20 Fla. 843, 51 Am. Rep. 631; Henshaw v. Root, 60 Ind. 220; Wood River Bank v. First Nat. Pank, 36 Neb. 744, 55 N. W. 239. See "Bills and Notes," Dec. Dig. (Key No.) §§ 394, 395; Cent. Dig. §§ 996-1050.

94 Moses v. President, etc., of Franklin Bank of Baltimore, 34 Md. 574; Wisner v. First Nat. Bank of Gallitzin, 220 Pa. 21, 68 Atl. 955, 17 L. R. A. (N. S.) 1266; Negotiable Instruments Law, § 118. For provisions in respect to protest, see sections 152-160. See "Bills and Notes," Dec. Dig. (Key No.) § 395; Cent. Dig. §§ 996–1021. 95 Negotiable Instruments Law, § 82. See Purcell v. Allemong, 63 Va. 739. See "Bills and Notes," Dec. Dig. (Key No.) §§ 397, 417; Cent. Dig. §§ 1029-1044, 1188-1193.

96 Negotiable Instruments Law, § 82. See Pollard v. Bowen, 57 Ind. 232; Emery v. Hobson, 62 Me. 578, 16 Am. Rep. 513 (indorser); Compton v. Gilman, 19 W. Va. 312, 42 Am. Rep. 776; ante, p. 100. See "Bills and Notes," Dec. Dig. (Key No.) § 422; Cent. Dig. §§ 11961208.

97 Simonds v. Black River Ins. Co., Fed. Cas. No. 12,874 (delay due to postal service); First Nat. Bank of Belle Plaine v. McConnell, 103 Minn. 340, 114 N. W. 1129, 14 L. R. A. (N. S.) 616, 123 Am. St. Rep. 336 (loss of check). See “Bills and Notes," Dec. Dig. (Key No.) § 417; Cent. Dig. §§ 1188-1193.

98 Negotiable Instruments Law, § 81.

the instrument,99 as where he drew without sufficient funds,100 unless he has, notwithstanding, reasonable grounds to believe it will be paid,101 or withdrew the funds before presentment. 102 Presentment is excused by the removal of the drawee bank, and by the bankruptcy and suspension.103 Notice of the existence of these circumstances should be given to the drawer, if known to him, as soon as possible or practicable, or the excuse will not avail.104

The circumstances which will excuse the holder of a check for failure to give notice of dishonor, or for delay therein, where notice is required, are substantially the same as excuse the holder of a bill of exchange.105

Presentment and Notice Before Suit

Although delay in presentment does not discharge the drawer, except so far as he is thereby prejudiced, presentment, unless excused, is ordinarily necessary to give the holder a

99 Negotiable Instruments Law, § 79.

100 Hoyt v. Seeley, 18 Conn. 353; Lester-Whitney Shoe Co. v. Oliver Co., 1 Ga. App. 244, 58 S. E. 212; Thom v. Sinsheimer, 66 Ill. App. 555; Beauregard v. Knowlton, 156 Mass. 395, 31 N. E. 389; Pack v. Thomas, 21 Miss. 11, 51 Am. Dec. 135. See, also, Carson, Pirie, Scott & Co. v. Fincher, 138 Mich. 666, 101 N. W. 844. See "Bills and Notes," Dec. Dig. (Key No.) § 397; Cent. Dig §§ 1029– 1044.

101 Mackall v. Goszler, 2 Cranch, C. C. 240, Fed. Cas. No. 8,835; Hamlin v. Simpson, 105 Iowa, 125, 74 N. W. 906, 44 L. R. A. 397. See "Bills and Notes," Dec. Dig. (Key No.) § 397; Cent. Dig. §§ 10291044.

Culver v. Marks,

102 Armstrong v. Brolaski (C. C.) 46 Fed. 903; 122 Ind. 554, 23 N. E. 1086, 7 L. R. A. 489, 17 Am. St. Rep. 377; Emery v. Hobson, 63 Me. 33; Conory v. Warren, 3 Johns. Cas. (N. Y.) 259, 2 Am. Dec. 156. Cf. Sutcliffe v. McDowell, 2 Nott & McC. (S. C.) 251. See "Bills and Notes," Dec. Dig. (Key No.) § 397; Cent. Dig. §§ 1029-1044.

103 See Purcell v. Allemong, 63 Va. 739. See "Bills and Notes," Dec. Dig. (Key No.) § 397; Cent. Dig. §§ 1029–1044.

104 See Purcell v. Allemong, 63 Va. 739. See "Bills and Notes," Dec. Dig. (Key No.) § 397; Cent. Dig. §§ 1029-1044.

105 See Negotiable Instruments Law, §§ 109-115.

cause of action against the drawer; his undertaking being to pay the check if on presentment it be dishonored.106 Such presentment may be made, however, at any time before suit," provided that it be not so long delayed that the action has not become barred by the statute of limitations.108

It has been held, also, that the giving of notice of dishonor, unless excused, is a prerequisite to suit.109 On the other hand, it has been held that notice of dishonor is not necessary to enable the holder to maintain an action against the drawer, if he has not suffered loss by reason of failure.110

Statute of Limitations

Since presentment is necessary to give the holder a cause of action against the drawer, it has been held that the statute of limitations does not begin to run until presentment and dis

Spink & Keyes Drug 18, 71 Am. St. Rep. Ross v: Saron (Sup.)

106 Kelley v. Brown, 5 Gray (Mass.) 108; Co. v. Ryan Drug Co., 72 Minn. 178, 75 N. W. 477; Harker v. Anderson, 21 Wend. (N. Y.) 372; 93 N. Y. Supp. 553; Commercial Nat. Bank of Charlotte v. First Nat. Bank, 118 N. C. 783, 24 S. E. 524, 32 L. R. A. 712, 54 Am. St. Rep. 753; Penn Nat. Bank v. Kopitzsch Soap Co., 161 Pa. 134, 28 Atl. 1077; Compton v. Gilman, 19 W. Va. 312, 42 Am. Rep. 776. See "Bills and Notes," Dec. Dig. (Key No.) §§ 394-398, 445; Cent. Dig. $$ 996-1050.

107 Church v. Farnham, 1 Sheld. (N. Y.) 393. See cases in preceding note. See "Bills and Notes," Dec. Dig. (Key No.) §§ 394-398; Cent. Dig. §§ 996-1050.

108 Brust v. Barrett, 16 Hun (N. Y.) 409. See "Limitation of Actions," Dec. Dig. (Key No.) § 66; Cent. Dig. § 366.

109 Sherman v. Comstock, 2 McLean, 19, Fed. Cas. No. 12,764; Dowling v. Hunt, 2 Ariz. 8, 7 Pac. 496; Minturn v. Fisher, 4 Cal. 35; Pollard v. Bowen, 57 Ind. 232; Shultz v. Depuy, 3 Abb. Prac. (N. Y.) 252; Goodwin v. Cobe, 24 Misc. Rep. 389, 53 N. Y. Supp. 415; Compton v. Gilman, 19 W. Va. 312, 42 Am. Rep. 776; Dolph v. Rice, 18 Wis. 397, 86 Am. Dec. 778. See "Bills and Notes," Dec. Dig. (Key No.) § 395; Cent. Dig. §§ 996-1021.

110 Industrial Bank of Chicago v. Bowes, 165 Ill. 70, 46 N. E. 10, 56 Am. St. Rep. 228; Spink & Keyes Drug Co. v. Ryan Drug Co., 72 Minn. 178, 75 N. W. 18, 71 Am. St. Rep. 477. See "Bills and Notes," Dec. Dig. (Key No.) §§ 394-398; Cent. Dig. §§ 996-1050.

111

honor; unless under the circumstances presentment is unnecessary, as where the check is not drawn against funds, in which case the statute begins to run from the issue.112 It has been held, however, that the presentment must be made at least within the statutory period of limitation, and that if delayed beyond that time the action is barred.113

NEGOTIABILITY AND TRANSFER

34. IN GENERAL-A check payable to order is negotiable by indorsement, and if payable to bearer is negotiable by delivery, with the same effect upon the rights of the parties to the instrument (except as explained in sections 32, 33, 35, and 36) as in the case of a demand bill of exchange.

35. LIABILITY OF INDORSER-Every indorser of a check who indorses without qualification incurs the liability of an indorser of a demand bill of exchange; that is, he engages that on due presentment to the drawee for payment it will be paid, and that if dishonored, and due notice of dishonor be given to him, he will pay the amount to the hold

111 Wright v. MacCarty, 92 Ill. App. 120. See "Limitation of Actions," Dec. Dig. (Key No.) § 66; Cent. Dig. § 366.

112 Brush v. Barrett, 82 N. Y. 400, 37 Am. Rep. 569. See "Limitation of Actions," Dec. Dig. (Key No.) § 66; Cent. Dig. § 366.

113 Brust v. Barrett, 16 Hun (N. Y.) 409.

The statute begins to run at latest after the lapse of a reasonable time for presentment, and a delay beyond the period of limitation would be a bar. Scroggin v. McClelland, 37 Neb. 644, 56 N. W. 208, 22 L. R. A. 110, 40 Am. St. Rep. 520; Wrigley v. Farmers' & Merchants' State Bank, 76 Neb. 862, 108 N. W. 132.

In jurisdictions where the Negotiable Instruments Law has been enacted, it seems that the drawer is discharged by his laches in giving notice of dishonor, although he suffered no loss thereby. Ante, p. 115. See "Limitation of Actions," Dec. Dig. (Key No.) § 66; Cent. Dig. § 366.