Opinion
Opinion delivered October 7, 1929.
1. BILLS AND NOTES — TIME FOR PRESENTING CHECK. — Under Crawford Moses' Dig., 7952, a check must be presented within a reasonable time after its issuance or the drawer will be discharged from liability thereon. 2. BILLS AND NOTES — TIME FOR PRESENTING CHECK. — What is a reasonable time for presenting a check for payment depends upon the circumstances of the particular case; the rule generally requiring that it he presented within banking hours not later than the day following its receipt by the payee where he resides or does business in the same town wherein the drawee bank is located. 3. VENDOR AND PURCHASER — LOSS BY FAILURE TO PRESENT CHECK. — Where a vendor instructed his vendee to pay the consideration for the land to his mortgagee, but, instead of doing so, he made the cheek payable to both the vendor and mortgagee, and by reason of the mortgagee's delay in presenting the check and the subsequent failure of the bank, the check was not paid, the loss was the purchaser's, and not the vendor's.
Appeal from Mississippi Circuit Court, Chickasawba District; W. W. Bandy, Judge; affirmed.
Mann McCulloch, for appellant.
W. D. Gravette, for appellee.
STATEMENT OF FACTS.
Appellee brought this suit against the appellant levee district to recover the consideration, $545.50, with interest, agreed to be paid for about five acres of land purchased from him by the said levee district.
It appears from the agreed statement of facts that he sold the lands for cash, and delivered a deed therefor to the district in accordance with the agreement of sale. There was a mortgage on the lands to one B. F. Gay, who was also required by the district to send a release thereof, which was done. Appellee and Gay, the owner and mortgagee, went to a firm of attorneys, Little, Buck Lasley, in Blytheville, had the deeds prepared, and sent for delivery to the levee district by A.G. Little of that firm, instructing him to have the consideration for the lands sent to Gay, the mortgagee. Mr. Little, the attorney, inclosed the deeds to appellant levee district with the following letter of instructions:
"At the request of Mr. W. E. Hagan and Mr. B. F. Gay I am inclosing you herewith a deed by Mr. Hagan and a release by Mr. Gay of said land taken for right-of-way. I am informed that the consideration for this land is payable to Mr. Gay, and you may send check either to him or to me for him.
(Signed) "Little, Buck, Lasley, "By A.G. Little."
Upon receipt of the deed and release, appellant district sent its check of date October 30, 1926, on "the First National Bank of Marked Tree, Arkansas, payable to the order of appellee, W. E. Hagan and B. F. Gay, to the said attorney, who delivered it to Mr. Gay, who lived south of Blytheville about seven miles, on November 5, 1926, which check was not presented to the bank upon which it was drawn until after it failed, and was placed in the hands of the State Banking Department for liquidation. The bank closed its doors on November 15, 1926, the appellant district having on deposit therein at all times since the drawing of the check more than enough funds to pay it. The check was delivered to Gay, who resided about seven miles southwest of Blytheville, on a rural route, within a day or two after it was mailed on the 4th of November. Appellee resided about 25 miles northeast of Blytheville, at Huffman, and Gay left the check at his bank, the Farmers' Bank Trust Company, at Blytheville, with directions, when indorsed by Hagan, to deposit it to his credit, and send it on for collection. The check was still in Gay's bank, awaiting the indorsement of Hagan, when the bank upon which it was drawn closed its doors. Appellee had received no notice of the check's having been delivered to Gay. Gay, on November 16, the day after the bank closed its doors, wrote Hagan requesting that he come in and indorse the check, having had no opportunity to see him on account of the bad condition of the roads. The letter was received by appellee on the 17th day of November. Appellee was not indebted to Gay at the time of bringing the suit, having paid the mortgage off.
Each party asked for a peremptory instruction, and the court directed a verdict for appellee, and from the judgment thereon this appeal is prosecuted.
(after stating the facts). Appellant insists that there was such an unreasonable delay in the presentation of the check by appellee for payment to the bank upon which it was drawn, and wherein it had funds on deposit sufficient to cover it, as to cause the loss to fall on appellee and discharge it from liability thereon.
It is true a check must be presented for payment within a reasonable time after its issue, or the drawer will be discharged from liability thereon (7952, C. M. Digest), but what is a reasonable time will depend upon the circumstances of the particular case, the rule generally requiring that it be presented within banking hours not later than the day following its receipt by the payee, where he resides or does business in the same town where the bank on which the check is drawn is located. Burns v. Yocum, 81 Ark. 127, 98 S.W. 956; Pelt v. Marler, 95 Ark. 111, 128 S.W. 554; Federal Land Bank of St. Louis v. Goodman, 173 Ark. 493, 292 S.W. 659; Geo. H. McFadden Bros. Agency v. Keesee, 179 Ark. 510, 16 S.W.2d 1001.
Appellee had directed, however, that the money for the purchase price of the lands sold and conveyed by him to the district be paid to B. F. Gay, the mortgagee, and had no reason to think that it had not been done until he received notice from Gay's letter, after the bank had failed, to come in and indorse the check, which had been made payable to his order as well as Gay's. Nothing could be done, after receipt of the notice of the check's being made payable jointly to his order, about its indorsement or collection, before the bank, which failed before the letter was written, had closed its doors. Gay was not his agent to receive the check, and appellee was In no wise negligent in the failure of presentation of it for payment, having had no knowledge that the check had not been made payable to Gay, as was directed should be done.
The court correctly directed a verdict in appellee's favor, and the judgment must be affirmed. It is so ordered.