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-AUG 27 1931

INDEX.

ACCORD AND SATISFACTION:

An accord without a satisfaction is no bar to an action on the original demand; a new undertaking, with new consideration accepted, is an accord and satisfaction good without performance. Page la, No.

1389.

Check of defendant stating on face that it was in full payment, cashed by plaintiff, held to be accord and satisfaction, though plaintiff notified defendant of its receipt and credit, but disclaimed settlement. Page 2a, No. 1390.

Loss having been sustained under a hail policy, the insurer claimed it was adjusted at $400, and the insured at $925. The company sent assured a check, which, with the balance due for premium, amounted to $400, reciting on its face, "This check accepted as payment in full for all claims to date." The assured cashed the check at his local bank, and in doing so wrote his name under an indorsement "Accepted in part payment of loss by payee." Held that, since there was no consideration for the acceptance and cashing of the check, it would not amount to an accord and satisfaction; Civ. Code, section 1180, providing that part performance of an obligation, when expressly accepted by the creditor in writing as satisfaction thereof without any new consideration, extinguishes the obligation, being inapplicable. Page 43a, No. 1414.

Whether a buyer, at the time of send

ing a check on which was written "in full to date," and whether the seller, on receiving and depositing the check, understood, or ought to have understood, as reasonable men, that the check was in accord and satisfaction of all outstanding claims between them, or whether the seller, on receiving the check, had a right to believe that it was sent in payment of a reduced bill for specified goods amounting to the exact amount of the check, held for the jury.

ACCORD AND SATISFACTION Con. The acceptance and collection of a check, proffered on condition that it is in full settlement of all unliquidated claims, though accompanied by protestations that it is not so received, bars any attempt to collect the balance, and constitutes an accord and satisfaction. Where plaintiff received defendant's check, on which was written the words "in full to date," plaintiff's erasure of such words before depositing the check was unauthorized, and did not affect the question whether its proffer and acceptance constituted an accord and satisfaction.

The acceptance and deposit of a check, on which is written the words "in full to date," or an equivalent phrase, does not constitute an accord and satisfaction of a controverted claim as a matter of law. Page 44a, No. 1415. The rule that, where the amount of a debt is undisputed, the receipt of a less sum to discharge the entire debt, is not a satisfaction, because the agreement is without consideration, followed and applied. It is not a consideration for an agreement to accept a less sum in satisfaction of the whole amount due on a promissory note that the maker agrees after maturity of the note to pay such lesser sum at a place other than that specified in the note. An agreement by certain joint makers of a note to procure one of their number, though insolvent, to contribute his proportionate share of the note, and to furnish him money to make the payment, is not a consideration for an agreement by the payee to accept a less sum in satis faction of the amount due on the

note.

An allegation that one defendant had a dispute and a counterclaim to the demand against him, is insufficient to constitute a consideration for an agreement to accept a less sum in payment of the amount due. Page 149a, No. 1477.

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BANKS AND BANKING:

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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
Walker street of that city, but found
a man whose name
was 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.

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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 91a, No.

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. M.
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.

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 deceived, 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: 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

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because defendant had ordered payment 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 infirmity 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 thereof 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 indorsement cannot be presumed. The rule that, where one, by representing that he is a certain other person, induces another to draw 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 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

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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

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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 COLLECTIONS:

Proceeds of a draft deposited with plaintiff bank for collection, sent to defendant bank and proceeds credited depositor by plaintiff and drawn out, draft uncollected, defendant bank not liable, but plaintiff bank entitled to recover from depositor, less their losses by reason of its negligence in not notifying them of non-payment. Page 8a, No. 1394.

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BANKS AND BANKING DEPOSITORS:

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A national bank bookkeeper induced defendants to deposit funds in the bank, and from time to time received money outside the bank to be deposited for them, but so manipulated accounts as to enable him to appropriate the money to his own use; checks against the deposit being charged against other depositOn discovery of the bookkeeper'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

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

FUNCTIONS-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.

BANKRUPTCY:

To constitute an act of bankruptcy by a corporation by general assignment, some act purporting to transfer 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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