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STATUS OF DRAWEE PRIOR TO ACCEPTANCE OR PAYMENT The drawee is not liable on the bill of exchange
or check until he accepts it. Even HDC cannot sue drawer prior to his acceptance o REASON: Mere issuance of the bill does not render the drawee liable because it does not operate as an assignment of the funds in the hands of the drawee o When the bill is accepted, the acceptor becomes primarily liable under Sec 62 o Bank is not liable until it accepts or certifies the check. Prior to certification, the drawer may issue a stop payment order
FIRST NATL BANK OF CENTRAL CITY V. UTTERBACK 177 Ky. 76, S.W. 534, L.R.A. 1918B, 838 (1917)
Subject: Negotiable Promissory note Maker: Utterback Payee: Davis Coal Co
NOTE: If the drawee bank refuses to accept the bill without justifiable reason/s, the drawee may be liable to the drawer for breach of contract or damages based on tort.
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WOODY V. NATIONAL BANK OF ROCKY MOUNT 194 N.C. 549, 140 S.E. 150 (1927)
Subject: Check for $6 Drawer: Woody Drawee: Bank of Rocky Mount Payee: E.L. Hollingworth Indorsee: Kingston Garage Depositing Bank: Kingston Bank FACTS: Woody issued a check for $6 payable to the order of Hollingworth. The check was indorsed to Kingston Garage, who in turn deposited it with Kingston Bank. At the time deposit, Woody had in his account with drawee bank $50. However, the check was dishonored and marked no account. Woody was arrested and charged for having issued a worthless check. He was later acquitted. As such, Woody filed an action for damages against Bank of Rocky Mount, alleging that the drawee banks act was willful, negligent, wanton and malicious. ISSUE: WON Woody may recover compensatory and punitive damages from drawee bank HELD: Yes. Upon the refusal or failure of the bank to pay the check of its depositor, the bank is liable for a breach of its contract. The depositor may recover of the bank the amount of his check, with interest and cost; the action being on contract, the recovery is limited to the amount of the check, with interest from date of demand and refusal, and, by virtue of the statute, the costs of the action. Notwithstanding that the relation of the bank to its depositor is that of debtor and creditor, a bank may be held liable in tort to its depositor whose check it has wrongfully refused or failed to pay.
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SPEROFF V. FIRST-CENTRAL TRUST CO 149 Ohio St. 415, 79 N.E. 2d 119 (1948)
FACTS: Vassil Speroff had drawn a check on First-Central Trust Co.
(FCTC). He eventually notified FCTC that said check be not paid (stop order). Speroff sued FCTC to recover the amount of said check. FCTC admitted to the drawing of the check and to having received the notice not to pay. However, it interposed the defense that Speroff signed a document stating that Speroff agreed to indemnify FCTC against any loss resulting from the nonpayment of said check and that it is expressly understood that it will not be held responsible if it paid the check through inadvertency or oversight. The trial court rendered a judgment for FCTC. CA reversed saying that said statement of release was void as it was contrary to public policy and void for want of consideration. Hence, this appeal.
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HELD: No. The Court upheld the CAs two grounds for avoiding the statement of release. ON WANT OF CONSIDERATION Under the reciprocal rights and obligations inherent in the relationship existing between a bank and its depositors, it was the duty of FCTC NOT to pay after it had received the stop payment order of Speroff. Hence, when Speroff was asked to sign a statement or release to the effect that the bank would not be held responsible if it would pay the check, this was a new element in the relationship. What consideration or benefit was received by Speroff as promisor and what detriment was suffered by FCTC as promise as a result of this statement? NONE so clearly there was no compliance with either of the fundamental requirements as to consideration. ON CONTRARY TO PUBLIC POLICY It is elementary that a bank is required by law to act in good faith and exercise reasonable care in its relationship with its depositors. In this case, the obtaining from Speroff of a purported release from liability for inadvertency or oversight as a condition of the order to stop payment of the check was contrary to public policy and did not relieve FCTC from its duty to act in good faith and exercise reasonable care. The Court distinguished that FCTCs defense of purported release was a void and invalid defense. However, the FCTCs defense of exercising good faith and reasonable care (which it interposed in its amended answer) is a valid defense so the Court remanded the case back to the Court of Common Pleas for trial on that issue.
CHASE NATL BANK OF CITY OF NEW YORK V. BATTAT Court of Appeals of New York 1948 297 N.Y. 185, 78 N.E. 2d, 465
Subject: Check for $25,000 as payment for the purchase of sugar Drawer: Arbeedee
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KILGORE NATL BANK V. MOORE BROS LUMBER CO 102 S.W. 2d 200 (1937)
Subject 2 checks Drawer: Waddell Drawee: Kilgore National Bank Payee: Moore Bros Lumber Co Collecting Bank: Grand Saline Bank FACTS: Waddell transacted with Moore Brothers, a firm engaged in the
lumber business. As payment for the lumber he purchased, Waddell drew 2 checks for $350 drawn against Kilgore National Bank. The 2 checks were deposited by Moore Brothers in Grand Saline Bank for collection. A few days later, Grand Saline notified G.J. Moore that the checks had been returned by Kilgore Bank unpaid. Because of this, G.J. Moore brought Waddell to Kilgore Bank where Waddell, Moore and the cashier of Kilgore Bank had an ORAL agreement. Waddell instructed Kilgore bank to pay Moore. The cashier promised Moore the payment of said checks once presented again. On the ledger of the bank in connection with Waddell's account, the cashier made the unsigned notation: "Hold for Moore Brothers $350.00" G.J. Moore ordered Grand Saline to forward the checks to Kilgore again. One of the checks was paid. The other, however, was not. This prompted Moore to file suit against Kilgore Bank to recover amount of the last mentioned unpaid check. ISSUE: WON Kilgore is liable for the other check HELD: No. Section 132 governs. To be a valid acceptance, the following requisites must be present: 1) It must be in writing 2) It must be signed by the drawee, and 3) It must not change the implied promise of acceptor to pay only in money. Acceptance is usually made by writing "accepted" and signing immediately below. However, the drawee's signature alone is NOT sufficient. The plain purpose of 132 is to prevent any liability to the holder of a check from arising from the bare oral promise of the drawee bank to pay the check.
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a.
URWILLER V. PLATTE VALLEY STATE BANK 164 Neb. 630, 83 N.W. 2d 88 (1957)
Subject: Check Drawer: Ira McCord Drawee: Platte Valley State Bank Payee: Norton Urwiller
WEISNER V. FIRST NATL BANK OF GALLITZIN 220 Pa. 21, 68 Atl. 955 (1908)
Subject: 6 Checks Drawer: Samuel Bullock
Drawee: First National Bank of Gallitzin Payee: Charles Gallaer or order Holder: Wisner
FACTS: As payment for his purchase of hogs, McCord issued to Urwiller a check for P2,491.11. The next day, Urwillers wife
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KINDS OF ACCEPTANCE
(1) General acceptance Sec 140 provides that an acceptance to pay at a particular place is a general acceptance UNLESS it expressly states that the bill is to be paid there only and not elsewhere (2) Conditional acceptance If any of the following are present: (a) Conditional i.e., which makes payment by the acceptor dependent on the fulfillment of a condition (b) Partial i.e., acceptance only to the part of the anount
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e.
f.
CHECKS An instrument which is in the form of a bill of exchange but is always payable on demand and always drawn on a bank Elements: (1) Contain an unconditional order (2) For payment of money (3) Amount of which is definite and certain (4) May be transferred by indorsement or by delivery depending if payable to bearer or to order Kinds of checks: (1) Personal checks most common form (2) Managers (cashiers) check drawn by a bank itself and has the effect of acceptance. It is more like a promissory note; as such bank is primarily liable (3) Memorandum check check where the word memorandum or memo is written across its face meaning that the drawer will pay the holder absolutely, without need of presentment
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NEW PACIFIC TIMBER & SUPPLY CO V. SENERIS 101 SCRA 686 (1980)
Subject: Equitable Banks cashiers check for P50,000 dated January 3, 1975 Drawer: New Pacific Timber FACTS: New Pacific failed to comply with his judgment obligation. Judge issued writ of execution for P63,130 to which the Sheriff levied upon personal properties and set the auction sale on January 15. Prior to the scheduled sale, New Timber deposited with the Clerk of Court the P50,000 check and P13,130 in cash. Seneris refused to accept check and cash. Sheriff proceeded with the auction sale. ISSUE: WON Seneris can validly refuse acceptance of the payment of the judgment obligation made by New Timber, consisting of the Cashiers check and cash. HELD: Yes. Sec 63 of Central Bank act provides that checks representing money are not considered legal tender and acceptance is at the option of the creditor. However, a check that has been cleared and credited to the account of the creditor is equivalent to delivery of cash. What was issued is a cashiers check from a bank of good standing and reputation. It is a well-known and accepted practice in business that a cashiers check is deemed as cash. Moreover, since the check had been certified by the drawee bank, by the certification, the funds represented by the checks are transferred from the credit of the maker to that of the payee or holder, and for all intents and purposes, the latter becomes the depositor of the drawee bank, with rights and duties of one in such situation. The certification is equivalent to acceptance. Said certification implies that the check is drawn upon sufficient funds the hands of the drawee, that they have
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BULLIET V. ALLEGHENY TRUST CO 284 Pa. 561, 131 Atl. 471 (1925)
Subject: Check for $5000
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SUTTER V. SECURITY TRUST CO 96 N.J. Eq. 644, 126 a. 435, 35 A.L.R. 938 (1924)
Subject: Checks Drawer: Sutter Drawee: Security Trust Co Payee: Mrs. Sutter Indorser Mack FACTS: Mr. Sutter drew a check in favor of his wife on March 25 1922 in the amount of $1000 for which he procured the certification of drawee Security Trust Co. The check was delivered to his wife in consideration of a certain agreement between them concerning their separation. The wife violated said agreement after the delivery of the check to her. On March 27, 1922 Mr. Sutter requested that payment be stopped upon the check because of Mrs. Sutters violation of their agreement. Mrs. Sutter on the same day went to her brother Mr. Mack and indorsed the check to him and he deposited it in his bank in Philadelphia. On March 30, through the Federal Reserve Bank of Philadelphia, the check was presented to Security Trust Co for payment which was refused on ground of payment stopped. Respondent told Mr. Sutter that the check was in the hands of an innocent third person for value and that unless he indemnified respondent the check would be paid. He refused to indemnify respondent, thus respondent paid the check upon subsequent presentment. Mr. Sutter demanded the payment to him of his alleged balance of $1034.41 which includes the $1000 drawn which was refused except as to balance of $34. ISSUE: WON Security Trust Co was justified in paying the indorsee Mr. Mack the $1000 value of the check HELD: Yes. The Bank was justified and legally called upon to make payment to Mrs. Sutter upon presentation and demand, as against the notice of the maker of the check to stop payment, its
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o o b.
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e.
ISSUE: WON BP 22 is constitutional HELD: Yes. BP 22 is clear and broad enough to cover all kinds of checks whether present or postdated, or whether issued in payment of a pre-existing obligation or given in mutual or simultaneous exchange for something of value. WON it violates the constitutional prohibition on non-imprisonment for debt No. Those who assail the statute claim that the felony is consummated only upon the dishonor/non-payment of check. That it is really a bad debt law rather than a bad check law. It punishes the non-payment of the check & not the act of issuing it. It is a veiled device to coerce payment of a debt under the threat of penal sanction. BP 22 punishes making & issuing a worthless check and not the non-payment of an obligation. It does not intend to coerce a debtor to pay his debt. It is punished because of its deleterious effects on the public interest. It punishes the act not as an offense against property, but an offense against public order. Although the legislature cannot penalize a person for non-payment of a debt ex-contractu, it can proscribe certain acts deemed
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3.
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WACHOVIA BANK & TRUST CO V. CRAFTON 181 N.C. 404, 107 S.E. 316 (1921)
Subject: Promissory Note Maker: Carver Payee/Indorser: Crafton Indorsee/HDC: Wachovia Bank FACTS: Carver issued a promissory note in favor of Crafton. Crafton in turn, indorsed the note to Wachovia Bank. Wachovia Bank, as HDC, sued Crafton on the note. Crafton, as indorser, denied liability, alleging that the PN was for an amount won in a gambling transaction hence, void. Lower court ruled in favor of defendant. Plaintiff appealed. ISSUE: WON the indorsee, a HDC can recover from a PN which was for an amount won in a gambling transaction HELD: Yes. Statutes applicable render this and all notes and contracts in like cases void and no action thereon can be sustained. The principle however, is allowed to prevail only where the action is on the note to enforce its obligations, and does not affect or extend to suits by an innocent indorsee for value and HDC against the indorser on his contract of indorsement. The contract of indorsement is a substantive contract, separable and independent of the instrument on which it appears, and where it has been made without ratification, and for value, it guarantees to a HDC, among other things that the instrument, at the time of the indorsement, is a valid and subsisting obligation.
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LIABILITY
OF RESTRICTIVE INDORSER Liability of restrictive indorser depends on the kind of restrictive indorsement is made If indorsement prohibits further negotiation = NI ceases to be negotiable but restrictive indorser is liable to his immediate indorsee as Gen indorser unless otherwise indicated If by restrictive indorsement, indorsee is made an agent of indorser = any subsequent indorsee who acquires title from agent acquires only such title Restrictive indorsement for the benefit of 3rd party = liable as Gen indorser unless otherwise indicated
ORDER OF LIABILITY AMONG INDORSERS Under Sec
68, among themselves, indorsers are liable prima facie in the order they indorse o Sec 68 does not bind the holder and he may sue any of the indorsers regardless of the order of their indorsement
a.
5.
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WEST RUSTLAND & TRUST CO V. HOUSTON 104 Vt. 104, 158 Atl. 69, 80 A.L.R. 664 (1932)
FACTS: The note in suit is a promissory note, signed by defendant Buck, an employee of the Buck Lumber Company, as MAKER then INDORSED by defendant Houston. This note is a renewal of another note, also signed by Buck as maker & indorsed by Houston, which was delivered to plaintiff bank as collateral security for the indebtedness of the Buck Lumber Company to it. Buck testified that before the note was signed, he had a talk with F.L. Jones, treasurer of the plaintiff bank. Jones told him that the bank examiner was expected to visit the bank very soon, & that he wanted a new note, to be held by the bank as collateral, as he thought that the indebtedness of the Buck Lumber Company to the bank was larger than the bank examiner would like. Jones explained that he was afraid not to have some extra collateral to show the examiner, & that the note would be held only until the examiner had examined the books & then returned to either of the defendants. Houston testified that he spoke with Buck about signing the note in suit, & he was told the purpose of the note, after which he signed it. NOTE: The bank examiner is sent by the commissioner of banking & insurance to oversee & inspect banks in order to protect the public interest. The receiver of the plaintiff bank (it appears the bank was subsequently placed in receivership) brought an action to recover from the defendants, as makers. The trial was by jury, and at the close of the evidence, a verdict was directed for plaintiff. The defendants excepted to the direction of the verdict and to the judgment thereon. ISSUES:
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The note matured but was not paid. Defendant argued that he did not receive or the whole of the amount of the debt; also, that the instrument was not presented to him for payment; finally that he is an accommodation party thus failure to negotiate means lack of liability.
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Where an indorsement is made as a favor to the indorsee, who requests it, not to secure payment, but to relieve himself from a distasteful situation, and where the only consideration for such indorsement passes from the indorser to the indorsee, the situation does not present one creating an accommodation indorsement, nor one where there is a consideration sufficient to sustain an action on the indorsement.
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by a real estate mortgage on the property of the Prudencios. Concepcion & Tamayo Construction Company (CTCC) had a pending contract with the Bureau of Public Works for the construction of the municipal building of Puerto Princesa, Palawan. As CTCC needed funds for the construction, Toribio, a relative of
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AUSTIN, NICHOLS & CO V. GROSS 98 Conn. 782, 120 Atl. 596 (1923)
Subject: Check in payment for goods by State Street Grocery Drawee: Palloti, Andretta & Co Bankers Payee: Austin, Nichols & Co FACTS: In payment for the goods by State Street Grocery from Austin, Nichols & Co, a check was delivered to the payee. The check had the following tenor: Pay to the order of Austin, Nichols & Co., Inc., $334 86/100, three hundred thirty-four 86/100 dollars. M. Gross. State Street Grocery Co. Inc. The check was duly presented for payment and has not been paid. At this time, plaintiff had no account with Gross personally. Plaintiff sued Gross, not State Street Grocery. Parol evidence, offered by Gross for the purpose of showing that the check sued on was the check of the State Street Grocery Co., was excluded. The trial court ruled in favor of plaintiff.
NEW GEORGIA NATL BANK OF ALBANY V. LIPPMAN 249 N.Y. 307, 164 N.E. 108, 80 A.L.R. 1344 (1928)
J&G
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a.
b.
2.
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3.
a.
DATE AND TIME OF PRESENTMENT OF NI WITH FIXED MATURITY If an instrument has a fixed date of maturity,
presentment must be made on the day the instrument falls due o If made before maturity = not effective o If made after maturity = too late unless delay is excusable; effect: secondary parties will be discharged o No presentment on Sunday or holiday = NI will have to be presented on the next business day (Sec 194) o In determining the proper date for presentment, the date from which the time is to run is excluded and the date of payment included
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