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· AUG 27 1931 INDEX.

ACCORD AND SATISFACTION:

ACCORD AND SATISFACTION — Con.
An accord without a satisfaction is The acceptance and collection of a

no bar to an action on the original check, proffered on condition that
demand; a new undertaking, with it is in full settlement of all un-
new consideration accepted, is an liquidated claims, though accom-
accord and satisfaction good with- panied by protestations that it is
out performance. Page la, No. not so received, bars any attempt to
1389.

collect the balance, and constitutes
Check of defendant stating on face an accord and satisfaction.

that it was in full payment, cashed Where plaintiff received defendant's
by plaintiff, held to be accord and check, on which was written the
satisfaction, though plaintiff noti- words “ in full to date," plaintiff's
fied defendant of its receipt and erasure of such words before de-
credit, but disclaimed settlement. positing the check was unauthor-
Page 2a, No. 1390.

ized, and did not affect the question
Loss having been sustained under a whether its proffer and acceptance

hail policy, the insurer claimed it constituted an accord and satisfac-
was adjusted at $400, and the in- tion.
sured at $925. The company sent The acceptance and deposit of a check,
assured a check, which, with the on which is written the words “in
balance due for premium, amounted

full to date," or an equivalent
to $400, reciting on its face, “ This phrase, does not constitute an ac-
check accepted as payment in full cord and satisfaction of a contro-
for all claims to date.” The as.

verted claim as a matter of law.
sured cashed the check at his local Page 44a, No. 1415.
bank, and in doing so wrote his The rule that, where the amount of a
name under an indorsement "Ac- debt is undisputed, the receipt of a
cepted in part payment of loss by less sum to discharge the entire
payee.” Held that, since there was debt, is not a satisfaction, because
no consideration for the acceptance the agreement is without considera-
and cashing of the check, it would tion, followed and applied.
not amount to an accord and satis. It is not a consideration for an agree.
faction; Civ. Code, section 1180, ment to accept a less sum in satis-
providing that part performance of faction of the whole amount due on
an obligation, when expressly ac- a promissory note that the maker
cepted by the creditor in writing as agrees after maturity of the note to
satisfaction thereof without any pay such lesser sum at a place other
new consideration, extinguishes the than that specified in the note.
obligation, being inapplicable. Page An agreement by certain joint makers
43a, No. 1414.

of a note to procure one of their
Whether a buyer, at the time of send- number, though insolvent, to con.

ing a check on which was written tribute his proportionate share of
“in full to date," and whether the the note, and to furnish him money
seller, on receiving and depositing to make the payment, is not a con.
the check, understood, or ought to

sideration for an agreement by the
have understood, reasonable

payee to accept a less sum in satis.
men, that the check was in accord faction of the amount due on the
and satisfaction of all outstanding

note.
claims between them, or whether the An allegation that one defendant had
seller, on receiving the check, had a dispute and a counterclaim to the
a right to believe that it was sent demand against him, is insufficient
in payment of a reduced bill for to constitute a consideration for an
specified goods amounting to the agreement to accept a less sum in
exact amount of the check, held for payment of the amount due. Page
the jury.

149a, No. 1477.

as

ALTERATION OF INSTRUMENTS:
In absence of notice to the payee, a

material alteration of the capacity
in which one of the makers signed
would not effect the liability of the

other indorsers or makers.
The alteration of an instrument by

one of the obligors before delivery
for the purpose of expressing the
real intention of the parties does not
avoid the contract. Page 124a, No.

1463.
ALTERATION OF INSTRUMENTS

BILLS AND NOTES:
Where the name of one of several

signers of a note was erased before
delivery by drawing marks through
his name, the effect of the erasure
was to take such name off the note,
to the same extent as if it had never
been signed thereto. Page 53a, No.

1421.
BANKS AND BANKING:
W., being indebted to R., whose place

of business W. knew to be 48 Walker
street, New York city, drew a check
on his local bank of deposit in fa-
vor of R. for the amount of the
debt, without designating therein
his place of business, and enclosed
the check with a letter in an en-
velope which he, through mistake,
addressed to R., 48 Walker street,
Cleveland, Ohio, and caused the en-
velope and contents so addressed to
be mailed in the usual way, and it
arrived in Cleveland in due course
of mail, where the letter carrier
found no one of that name on
Walker street of that city, but found
a man whose name

R.
Henry street, and to whom the car.
rier delivered the letter. He opened
it and took possession of the check,
and by indorsing the name R. on
the back thereof obtained the cash
from an acquaintance, who indorsed
and deposited said check in his bank
of deposit in Cleveland. The latter
bank indorsed it over to another
bank in the same city, guaranteeing
prior indorsements, and this bank
indorsed it payable to any bank or
bearer, guaranteeing it all prior in-
dorsements, and in this condition it
was presented to the drawee bank,
and by it paid and charged to W.'s
account, it having no knowledge of
said mistake in addressing the let-
ter. W. afterwards charged his
debt to the New York creditor by
other means, and brings suit against
the drawee bank to recover the
amount of the check so charged to
his account.

BANKS AND BANKING - Continued.
Held, the drawer of the check was

first in fault, and as his negligence
contributed directly to its wrongful
and fraudulent appropriation, he is
not entitled to recover. Page 47a,

No. 1417.
Where defendant purchased a claim

against a bank to which he was in-
debted, and the bank passed into the
hands of a receiver, the assignment
of the claim did not give defend-
ant the right to have the same ap-
plied on his note to the bank pend-
ing the receivership; but the bank
having resumed business, and the
deposit having remained intact, de-
fendant was then entitled to have
the assigned deposit credited against
his indebtedness, subject to the
bank's right to deduct therefrom

any debt owing to it by the assignor.
Where a bank depositor assigned his

claim to defendant, who claimed the
right to offset it against his in-
debtedness to the bank, which also
claimed the right to offset an al-
leged indebtedness against the as-
signor, the burden was on the bank
to prove the amount of the assign-
or's indebtedness. Page 9la, Ño.

1445.
Plaintiff deposited to his account a

check drawn upon a bank in an-
other State, indorsing it to the order
of the bank, and it was entered on
a deposit slip on which was the
printed statement, "All items cred-
ited subject to final payment,” and
sent the note to its correspondent
bank for collection. It was collected
by that bank, but the proceeds were
not paid over and the correspondent
bank became insolvent, on which
the depositor's bank charged it
back against plaintiff's account.
There was no evidence as to any
want of diligence or due care in the
selection of the correspondent bank.
Held, in an action by the depositor
to recover the amount of the check,
that the bank was entitled to a
directed verdict. Page 143a, No.

1472.
One W. accompanied a stranger to the

office of M., and introduced him as
G. T., who wanted to procure a loan
of money. The stranger asked to
borrow $3,000, as the owner of a
farm, on which he would give a
mortgage to secure the loan.
caused notes and a mortgage to be
drawn, which, being executed by the
stranger under the name of G. T.,
were delivered to M. Thereupon M.
delivered a check on a nearby bank.

was

on

M.

BANKS AND BANKING Continued.

The check was presented by the stranger, to whom it had been given, indorsed by that person and by W., to the bank and by it was paid, relying upon the identification by W. The person who received the money was not the owner of the land, but an impostor. Held that, although M. was mistaken and de. ceived, yet, inasmuch as the person he dealt with was the person intended by him as the payee of the check and the identical person to whom the bank paid it, he cannot recover his loss from the bank. Page 139a, No. 1469.

BANKS AND BANKING — CASHIER: A cashier of a bank cannot delegate to

an officer of another bank authority to accept drafts in such cashier's

name.

Drafts on a State bank were presented

at a national bank, and the vicepresident of the national bank, with the authority of the cashier of the state bank, executed a written acceptance in the name of the cashier of the State bank. Held that, as one person cannot be an agent and a party at the same time except with the full knowledge and consent of the principal, the acceptance by the vice-president was not authorized, and hence was not evidence of a written acceptance under L. O. L. (Ore.), $ 5965, requiring the acceptance of a bill to be in writing and signed by the drawee. Page 94a, No. 1447.

BANKS AND BANKING - CHECKS

Continued. because defendant had ordered pay. ment stopped. Held, that plaintiff bank was a bona fide purchaser of the check for value, and not a mere subagent of the insolvent bank for collection and credit, and was therefore entitled to recover in the absence of proof that he purchased the check with actual knowledge of the deposit bank's insolvency or any in

firmity connected therewith. The rights of plaintiff as a bona fide

purchaser being determined in accordance with the legal as distinguished from the equitable rights of the parties, it was entitled to recover the whole amount of the check, and was not subject to a deduction to the amount in its hands to the credit of the indorsing bank at the time of the latter's failure. No.

1441. As a general rule, where a check is

drawn payable to an actually existing person, and his indorsement there. of is forged, payment by the bank on which it is drawn is not an acquittance, though it also bears the indorsement of other banks through which it has passed; it having used no diligence to ascertain whether the payee's indorsement was genuine, and not having shown the other

banks had used any. Even if the fact that the endorsement

of the payee of a check was forged by a person of the same name, living where the bank which first cashed it was located, could affect the liability to the drawer, of the bank on which it was drawn, which subsequently paid it, such indorse

ment cannot be presumed. The rule that, where one, by represent

ing that he is a certain other person, induces another to draw a check in his favor in the name of that person, the drawer cannot complain of its payment when indorsed by such imposter in the name assumed, does not apply where a check, payable to a certain person, is delivered to another on his false representation that he is the payee's agent and is paid on said imposter's forged indorsement of the payee's

BANKS AND BANKING – CHECKS: Defendant drew a check on its bank

in O., and by indorsement made the check payable to its deposit bank in L., which thereafter became insolvent. The check was credited to defendant on the books of the L. Bank and sent to plaintiff, the L. Bank's correspondent for collection and credit. Plaintiff on receiving the check, payable by indorsement to the order of any bank or banker, in a letter advising that it was enclosed for collection and credit, credited the amount to the L. Bank's general account, and thereafter paid drafts against the account and made remittances to the L. Bank, so that its credit at the close of business on October 10th, when the L. Bank closed its doors, was much less than the amount of the check which, on being presented to the drawee bank for payment, payment was refused

name.

Where H. falsely claiming to be F.'s

agent, delivered to R. a deed of land, F.'s signature to which as grantor was forged, and received from R. a check payable to F., the bank on which it was drawn, being sued by R., on the ground that it

BANKS AND BANKING - DE.

POSITORS - Continued.
have been defendants' agent, and not
the bank's. Page 89a, No. 1444.

BANKS AND BANKING DE.

POSITS TRUST FUNDS

NOTICE: Where the source and nature of an ac.

count in the name of an estate were disclosed by the terms of deposit in bank, the bank must be held to have known that, if the administrator appropriated the deposit to his own use, the appropriation would be a

breach of its trust. Money deposited in a bank is held by

the bank subject to the obligation to pay to the depositor on demand or

to his order. Where money is deposited in a bank,

the checks of the depositor will not transfer the debt or title to the payee without the bank's consent. Page 14la, No. 1471.

BANKS AND BANKING - DRAFTS:
İf a bank received a draft as a deposit,

the title thereto passed to the bank;
but, if the bank should only receive
the draft for collection, title did not
pass to it. Page 140a, No. 1470.

BANKS AND BANKING - NOTICE: Where a cashier of a bank pledged

BANKS AND BANKING - CHECKS

- Continued. was liable for payment of the check on the forged indorsement of F.'s name, may not introduce the deed in evidence for comparison of the signature thereto with that of the indorsement of the check; it being immaterial whether or not they are the same. Page 92a, No. 1446.

BANKS AND BANKING - COLLEC.

TIONS:
Proceeds of a draft deposited with

plaintiff bank for collection, sent to
defendant bank and proceeds cred.
ited depositor by plaintiff and
drawn out, draft uncollected, de-
fendant bank not liable, but plain-
tiff bank entitled to recover from
depositor, less their losses by rea-
son of its negligence in not notify-
ing them of non-payment. Page
8a, No. 1394.

BANKS AND BANKING DE.

POSITS:
A certified check of a depositor, prop-

erly indorsed, retained by its bank
as collateral for loans to depositor,
could not be recovered by executors
as a balance on deposit in defend-

ant's name. Page 7a, No. 1393. Evidence held to show that a draft

with bill of lading attached was deposited for collection, and not so as to pass title to the bank. Page 140a, No. 1470.

notes with such bank as collateral security for his own indebtedness, the bank is not chargeable with his knowledge of any infirmity in such notes. Page 98a, No. 1449.

BANKS AND BANKING DEPOSIT

ORS:
A national bank bookkeeper induced

defendants to deposit funds in the
bank, and from time to time re-
ceived money outside the bank to be
deposited for them, but so manipu-
lated accounts as to enable him to
appropriate the money to his own
use; checks against the deposit be-
ing charged against other deposit-

On discovery of the book. keeper's defalcations, his surety paid the bank the shortage and took an assignment of the bank's claim against defendants, arising through the overdraft resulting from charging their checks against their_account. The national bank act (Rev. St. U. S., § 5190; U. S. Comp. St. 1901, p. 3486) requires a national bank to transact its business at the place specified in the organization certificate. Held, that as affecting defendant's liability to the surety, the bookkeeper must be deemed to

BANKS AND BANKING FUNC

TIONS_PAYMENT OF CHECKS: A bank's failure to pay a check of a

depositor drawn in favor of another does not render it liable, unless the check was presented at the proper time and place, properly indorsed, and, if transferred by the payee, properly indorsed by the transferee. Page 46a, No. 1416.

ors.

BANKRUPTCY:
To constitute an act of bankruptcy

by a corporation by general assign-
ment, some act purporting to trans.
fer all property must be shown; a
general assignment may be made
without a formal deed; a general
assignment is an act of bankruptcy
even though invalid for some other
purpose; preparation of a deed of
general assignment not signed nor

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