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set off a judgment rendered on the note in an action brought for the deposit. 474 If money is paid by the acceptors to their bankers to take up the bill, and it is nevertheless dishonored by the bankers and taken up by the drawer, he does not thereby get a right of action against the bankers, but they are liable to the acceptors only.475 Making a note payable at a bank does not make the bank the agent of the maker, so as to render it liable to his assignee for not paying the note,476 nor to the holder. But its failure to make such application, where the fund is sufficient at the maturity of the paper, and remains so until action brought, will discharge the indorser.478 And the fact that the note of a depositor is held by the bank before its maturity does not give the bank a lien on the maker's deposit.479 A mercantile partnership is not authorized to apply the general deposit of a customer to the payment of his notes. And a bank cannot, in general, apply the deposit of an indorser to the payment of a note payable at the bank.481 But if a note is discounted by a bank for one of its depositors, his deposits at the maturity of the note, and afterwards, are liable for its payment.482
Funds Provided and Lost.
§ 1442. The fact that a maker has funds, at the maturity of a note, at the bank named in it as the place of payment, does not
474 Marsh v. Bank, 34 Barb. (N. Y.) 298.
475 Hill v. Royds, L. R. 8 Eq. 290.
476 Smith v. Bank, 22 Barb. (N. Y.) 627.
477 Merchants' & Planters' Bank v. Meyer, 56 Ark. 499, 20 S. W. 406. In this case the deposit was made after the note matured, and was less than its full amount.
478 Central Bank v. Thein, 76 Hun (N. Y.) 571, 28 N. Y. Supp. 232; German Nat. Bank v. Foreman, 138 Pa. St. 474, 21 Atl. 20.
479 State Sav. Ass'n v. Boatmen's Sav. Bank, 11 Mo. App. 292. It cannot retain the deposit to meet a note not yet matured, although it has guarantied its payment. Commercial Nat. Bank v. Proctor, 98 Ill. 558. Nor can it apply a deposit made after the dishonor of the paper. Gordon v. Muchler, 34 La. Ann. 604; Steiner v. Loan Co., 98 Pa. St. 591; First Nat. Bank v. Peltz, 176 Pa. St. 513, 35 Atl. 218.
490 Vance v. Geib, 27 Tex. 272.
481 Mechanics' & Traders' Bank v. Seitz, 150 Pa. St. 632, 24 Atl. 356; even though the indorser is the principal debtor, First Nat. Bank v. Peltz, 176 Pa. St. 513, 35 Atl. 218.
482 Muench v. Bank, 11 Mo. App. 144.
make the bank the agent of the holder in any way; and, if the bank fails before the note is presented, the maker will not be discharged by the fact that the holder did not present the instrument at maturity for payment, and that it would have been paid, if presented at that time.483 So, if the drawer of a bill makes a deposit with his banker, on whom it was drawn, for the payment of the bill, and the drawee fails to pay it, the loss will fall on the drawer, and not on the holder.48 So, if the maker sends money to the bank where his note is payable, and withdraws it after maturity (the note not having been then presented), it will not be a valid payment or tender of payment, although it might have been a good tender, if continued in the hands of the bank.485 So, if a mortgagor notifies the mortgagee that the money is waiting at a certain bank to pay the mortgage, and the bank fails before demand is made, it will not amount to a payment.486 And even where the maker sends funds to the place of payment to take up a note, and the note is indorsed by the holder to the bank for collection, the bank will be regarded as the maker's agent, and, if it fails before the note is paid, the maker will be still liable.487 So, if a bank at A. holds a note which is payable at B., at a place not particularly designated, and money is left by the maker with an agent at B., and is afterwards stolen, and not applied to the note, it will not make such agent the holder's agent, or amount to a payment of the note. or stop the running of interest on it.488 But if a note for goods purchased is made payable at a bank, and it is provided that the sale shall be forfeited if the note is not paid at maturity, the makers will not be subjected to such forfeiture until the note is formally presented at the bank. 489
If money is given by the maker of a note to his agent for the purpose of taking it up, and is tendered to the holder on his surrender of the note, and the note is mislaid, and not found
483 Adams v. Improvement Commission, 44 N. J. Law, 638. But see, contra, Lazier v. Horan, 55 Iowa, 75, 7 N. W. 457.
484 Moore v. Meyer, 57 Ala. 20.
485 Hills v. Place, 48 N. Y. 520.
486 Freeholders of Middlesex v. Thomas, 20 N. J. Eq. 39.
487 Sutherland v. Bank, 31 Mich. 230.
488 First Nat. Bank v. Free, 67 Iowa, 11, 24 N. W. 566.
489 Robinson v. Cheney, 17 Neb. 673, 24 N. W. 378.
by the holder until the agent has failed, with the maker's money in his hands, it will not amount to a payment, but will be a sufficient tender to stop the running of interest.190 But if money is sent by the maker to his agent, and the agent persuades the holder to take his note in settlement, it will be a payment, and release the maker.491 So, if a note is taken and held by an agent for his principal, and is afterwards paid by him to his principal, it will be a payment, and not a purchase by the agent.492 So, where a check belonging to the government is paid by a collector to the treasurer by a bank certificate of deposit, which was duly paid, it will be a payment of the check, although the check itself (which had been discounted by the bank) was dishonored and taken up by the collector, and surrendered to the drawer of the check for a note made by him. And the latter instrument cannot be treated as a preferred debt due the government, although the original check was taken up by the collector with other funds belonging to the government.493. If a note is taken up by the maker's agent with the proceeds of goods belonging to the maker, it is paid, and cannot afterwards be transferred or pledged by the agent. So, if bank bills are purchased by an agent for the bank that issued them, they are thereby extinguished, although still in the agent's hands as vouchers; and they cannot, therefore, be attached as the property of the bank.495
490 Dent v. Dunn, 3 Camp. 296.
491 Baker v. Gavitt, 128 Mass. 93.
§ 1444. The payment of the bill or note must be made to the rightful holder or to his authorized agent. And, if made to a
12 Edw. Bills & N. § 730; Story, Bills, § 413; Story, Prom. Notes, § 375. But it is sufficient to aver that the bill was paid "according to the custom of merchants." Cox v. Earle, 3 Barn. & Ald. 430.
wrongful holder before maturity, it will be at the risk of the party making it. And, in general, a payment is valid, as against other parties, only when made in good faith and in ignorance of all facts which impair the holder's title. Thus, if it is paid to the original holder, who had transferred the note and obtained it again by fraud, which was known to the payor, it will not be sufficient.* If, however, payment is made to one who holds under a blank indorsement, his possession will be presumptive evidence of his title and right to receive the money. Any one in possession is entitled prima facie to receive payment of a note payable to bearer, or to "A. or bearer." 7
If it is so payable, even a payment, made in good faith, to a thief or finder, who is in actual possession, will be good. So, too,
: Benj. Chalm. Dig. art. 236; Chit. Bills, 446; 2 Daniel, Neg. Inst. 263; 2 Pars. Notes & B. 211; Story, Bills, § 416.
3 * Benj. Chalm. Dig. art. 236; Story, Bills, § 450. The authority of a stranger to receive payment must be shown by the party alleging it. South Branch Lumber Co. v. Littlejohn, 31 Neb. 606, 48 N. W. 476; Richards v. Waller, 49 Neb. 639, 68 N. W. 1053; Bank of University v. Tuck (Ga.) 28 S. E. 168. But good faith is not sufficient, of itself, to make good a payment to the wrong holder. 2 Daniel, Neg. Inst. 254, 261.
Pfau v. Biertenberger, 13 Mo. App. 595; but a subsequent bona fide pledgee will be protected.
Byles. Bills, 223; Benj. Chalm. Dig. art. 236; Chit. Bills, 445; 2 Edw. Bills & N. § 730; Story, Bills, § 415; Owen v. Barrow, 1 Bos. & P. (N. S.) 101; Davis v. Association, 20 La. Ann. 24; Dorr v. Jouet, Id. 27; although the holder is merely an attorney for the indorser, Ellsworth v. Fogg, 35 Vt. 355. And see § 1078, supra.
Although he is known to be a holder for another, Cone v. Brown, 15 Rich. (S. C.) 262; or though he had pledged it to another (not in possession) as collateral, Greer v. Woolfolk, 60 Ga. 623; or although he held it to collect, and had a private agreement, unknown to the maker, to surrender it, on the death of the original holder, to her executor, Lamb v. Matthews, 41 Vt. 42.
7 Greve v. Schweitzer, 36 Wis. 554. So, too, a county order, Sweet v. Commissioners, 16 Minn. 106 (Gil. 96); or a sealed note, Merritt v. Cole, 9 Hun, 98, 14 Hun, 324. But the payment is not good, if the maker knew that the "bearer" had no authority from the true owner to receive payment. Chappelear v. Martin, 45 Ohio St. 126, 12 N. E. 448.
Byles, Bills, 223; Benj. Chalm. Dig. art. 236; Chit. Bills, 446; 2 Daniel, Neg. Inst. 258; 2 Pars. Notes & B. 212; Smith v. Sheppard, Sel. Cas. Ch. 243; or to a fraudulent holder, Alexander v. Rollins, 14 Mo. App. 109.