288 FUTRALL V. BOWE. [187 - FETRALL . V. BOWEN: 4-2946 Opinion delivered.April : 17, 1933. - „ BILLS AND NOTES—FAILCRE TO PRESENT CHECk.—Failure of the holder to present a cheCk for ieveral weeks beCause short of the balance due on the ' note whiCh it" was intendea to pay discharged the drawer to the extent of 'loss caused by: the delay where 'the .drawee bank failed before the check ,was presented for payment. Appeal froth-Jefferson Circuit Court ; T. G. Parkdm, Judge ; affirmed. Harry'T. Wooldridge, for appellant.. • Coleman & Gantt, for appellee. • SMITH; J. Robert • Bowen, who is a farmer and -operates a gin at Altheimer, purchased a Ford car-from F. G. Smart Motor Company, of Pine Bluff, and- executed a note for $270, with interest at -8. per cent, covering the _amount of purchase money unpaid in cash.. The- note
ARK.] FUTRALL v. BOWElSt. • 289 was transferred by the motor company to the National Bank of Arkansas in Pine Bluff, which later became insolvent , and .was placed in the hands of a receiver, who sent Bowen 'a notice just before the maturity of the note that there would be due $279.95 for principal and interest on November 1, 1930, the maturity date. Immediately upon receipt of this notice, Bowen drew a check on the Bank of Altheimer, at Altheimer, for the amount stated in the notice, and made notation on the check, reading: "Bal. note Ford auto." ,Bowen sent this check, not to the bank holding the note, but to the motor company, and Miss Boston, its cashier, presented the check to the bank in payment of the note which Bowen had made and the motor company had indorsed. The check was presented to Frank Boone, who was the receiver's assistant. Boone discovered that the check had not been drawn for a sufficient amount, and so advised Miss Boston. His testimony as to the circumstances under which the check was delivered was as follows : "A. Miss Boston, as I-said before, brought the check up there, and I told her it was lacking $10 being enough to pay the note, and that I would have to have the additi-onal $10. That I couldn't use the check because it marked to indicate that it was payment in full of the note. At that time I told her, I ask her if she rather, or if she wanted me to write to Mr. Bowen or if she would, and as I remember she said she would get another $10 and bring it to me. Relying on that, I just put the check away and waited for the $10 and forgot all about it, to tell the truth." Thereafter Miss Boston" dictated a letter dated No-vember 3, 1930, reading as follows: "We are in receipt of your check in the amount of $279.95 to cover note due November 1st amounting to $270 and $9.95 to apply on the interest. "The bank advised us this mornihg that they made a mistake of $10 in figuring the interest on this note, as it should have been $19.95 instea , d of $9.95. "Please let us have your check for $10 by return mail and we will forward you your canceled note." Miss Boston had quit the service of the motor company and was residing in Texas at the time of the trial
290 FUTRALL V BOWEN. [187 and:did not testify ibut Miss , Cox, -who was . employed -as a stenographer ;by the motor: company, •testitied that . the letter was dictated by Miss Boston to her, .and by her • typewritten, and that she mailed the letter•to Bowen.., • • The $10 was never paid, and the bank made no attempt to cash the check, but. .retained poSsession of it, and on November . 17; 1930, the bank UpOn which it was drawn failed to open its doors. • Bowen' testified that he" received the notice during the ginning season, and that he was . employed about his gin 'from 4 A. M. until late at night, and that he stopped Work upon receipt of the notice only long enough to write 'a check,- which he pinned to 'the notice and mailed both to the motor' , coMpany' Without writing a.letter. He did -not knoW any 'mistake had been made in calculating the interest.. At' no lithe" for two-months prier to the closing of the bank:on which the 'check was draWn was his "de.- posit less than $940, and the' check woUld have been paid upon demand. -This bank remained Open . thrOugh*Satur-day, November 15, but failed to open on 'Monday, Novem-ber 17: When asked Jf he. had'an7 recelleCtion of having received the letter'set out 'abo6 frOm- the motor-Conatany, Bowen 'answered, NOY sit," . not knoW Of," and When asked, "Are-you prepared to say that yeti did not receiVe the letter?' ' answered, "No, sir ; Lweuldn't say positiVely I did not: I don't know anything abent if."- Witness a g -sumed that his note-had been"paid, "and he did"Uot have any notice from the' reeeiver of . the National' Bank- of Arkansas that there was any'balanee dile on the note, and he testified further that"' ne'ver dreamed that the check had not gone throUgh:' Until the Bank 'ef' Altheimer closed," and a representative of the National Bank had been to see him about paying the note. It was shown that . Bowen had on deposit in the Bank of Altheirner at ' . the time , it closed its doors the sum of $1,234. 3, but it , was shown also that 'he was indebted to that bank in the sum of $6,000, 'evidenced by iwo notes for $3,000 each, and' thiS deposit-was 'credited upon one of tbe notes 'when the bank closed.' BOWen testified that he had negotiated a settlement of bis liability t6 the Althei-Tiler bank, which was unaffected' by the unpaid' check, this
-FUTRALL v. BOWEN. _ 291 settlement resulting . from . the conclusion of the-liquidating agent for the Altheimer. bank that it was more advantageous to the bank than a -§uit would . be , which would force Bowen 'info bankruptcy, and that -he iN fas therefore damaged to -the-extent of- the face .of the -check: . It Was the opininn of the tf . ial cOurt, in Which a:majority of this court ConcOrS, .that . the receiYer : of the National Bank should haye Collected the check in due course, and that, had any .diligence been:employed in this..respect, the , check would have , been- paid:before • the bank upon which- it was drawn had- closed its ,doors. •• It is provided by § 7952, , Cx ; awford 4 Moses ,,DigeSt, that "a check , must be presented , for . payment within a reakonable tinie after its 'issue or the draiver Will 'be discharged from liability -thereon to the extent of 'the losS• caused ‘by the . delay." - ' • ' — •. We had occasion to consider, in the . recent caSe Of Federal 'Land' Bank . of SL , Louis' v. • Good , inan; 173' Ark. 489, 292 S. W. 659, what was a reasonable time for piesen • tation of a•check for payment, and, npOn the authority of that caSe, , and under the 'rule there announced,;'the; 'check - in- the instant case:was held for more .. than a reasonable' time, 'indeed; it was' aever presented,' and . .the delay resulted in • the failure . tO collect it' and thereby tog-Jay-the note in' satiS . f • actio ; n of 'which 'it had been drawn.' , 11* . • • • . ? • Majopty are Of t h • e Opin • i on that the .coiirt,beiolv, byi consent, as a jury, .WaS.,Wati,airted the, infetence . grOin.the'testinionY .. in ,the case tiat there_ was , no , . di'rectiOn tol the:National ; Bank, given either' by, the niotOr 'cOinpany, arid,•ceitainlY,not;by the cheek' , unfil the'. additiOnal , $1-0 110: been , p'aia; .04 that the., banfc :ShOtild . ' • haye , , COlt6Cied' th6 . *che'ck in the' riSna:l' dOur ge', ' 40' that the neklect of its' feceiVer had' resalted ........ i6 .rna.6 'the -. C011eefien Whieh l ShOntd há.re- been made. , The . writer, ,and Mr. , Justice MCHANEY 'do not concur, in that yiew. •••• 'The judgment of the .COurt beloW. innst therefore be affirmed, and it is -so' ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.