I find myself unable to agree with count 1 of the majority opinion, and therefore respectfully dissent.
My difficulty grows out of the fact that I cannot see the difference between a draft and a check. A draft is a check drawn by one bank on another, while a check is an instrument drawn by an individual on a bank. If there is no difference between these instruments, then, in my humble judgment, the argument of the majority in regard to the statute of limitations would not apply.
Let us see what the appellant claims. In his very able argument he concedes:
"While it is true that our court has often said in effect that drafts are banker's checks and that a draft and a check may be considered for practical purposes to be the same, it is also true that they are not always the same in all respects."
The Nebraska court in the case of Wrigley v. Farmers and Merchants State Bank, 76 Nebraska 862, 108 N.W. 132, was confronted with a case very similar to the one at bar, and that court said, 108 N.W. at pages 132, 133:
"The trial court found that the action was barred by the statute of limitations and the correctness of that conclusion is challenged, the contention of the appellant being that the cause of action against the appellee did not accrue until the draft was presented for payment in November, 1899. Counsel for appellant has presented an interesting discussion of the distinction between a draft drawn by one bank on another and a bank check drawn by a customer. We are inclined, however, to adopt the view of counsel for appellee, that the distinction is not important to the inquiry. In Scroggin v. McClelland, 37 Neb. 644 [56 N.W. 208, 22 L.R.A. 110, 40 Am. St. Rep. 520], it was held that the statute of limitations commences to run in favor of the drawer of a check at the latest after the lapse of a reasonable time for the presentment of the check. We see no reason for adopting a different rule in favor of the holder of a bank draft. * * * *Page 1259
"The reason for the rule is that it was the right of the creditor by his own act to make the demand payable. He might, by such act, have perfected his cause of action, and it would be both unjust and unreasonable to hold that he could postpone indefinitely the time for enforcing his claim."
The Pennsylvania court in the case of Bernstein v. Bryn Mawr Trust Co., 318 Pa. 42, 177 A. 803, said:
"The check was drawn by defendant on the Bryn Mawr National Bank in which the former had a deposit. * * * To circumvent the statute, it is contended the drawing of the check constituted plaintiff one of defendant's depositors, and, as such, the statute would not begin to run before demand. The check in question was of the ordinary character one banking institution draws upon another. It would be remarkable, if this, without more, should constitute the indorsee of such an instrument a depositor in the drawing bank. The discussion to be found in Metropolitan Life Insurance Company's Appeal, 310 Pa. 17,164 A. 715, 86 A.L.R. 1301, is conclusive against plaintiff's contention." 177 A. page 804.
Let us turn now to what the Iowa court has said in regard to this. In the very recent case of Leach v. Mechanics Savings Bank,202 Iowa 899, at page 904, 211 N.W. 506, at page 508, 50 A.L.R. 388, this court said:
"The terms `draft' and `check' are used interchangeably, and courts have uniformly held that drafts are checks, within the ordinary meaning of that term. The only distinguishing feature between the two is that in a draft the drawer is a bank, while in the ordinary check the drawer is an individual."
The legislature of Iowa said, in enacting code section 9646:
"A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this chapter applicable to a bill of exchange payable on demand apply to a check."
Thus, it seems to me, the courts, including the Iowa court, have held that you cannot distinguish a draft from an ordinary check drawn by a private individual. Both differ from an ordinary bill of exchange in that the latter is drawn to be accepted *Page 1260 and further negotiated until it becomes due, while a draft or check is an order to pay and usually is presented for payment.
In the case of Colwell v. Colwell, 92 Or. 103, 179 P. 916, 4 A.L.R. 876, the Oregon court said:
"A check is an instrument designed for use presently, and not for a permanent investment. If A owes B a sum of money, the latter must commence his action within six years; but, if A gives his check to B, this does not alter the circumstances in that respect beyond the requirement that the holder of the check must present it within a reasonable time. The statute declares that, except upon a judgment or a sealed instrument, an action must be commenced within six years upon `a contract or liability express or implied.' L.D.L., § 6.
"This provision is for the benefit of the drawer as well as of any other party to a check. The instrument is one upon which a possible action may be founded. If the holder would avail himself of the benefit of the contract embodied in it, or if he would enforce his remedy upon it, he is bound to act within the period allowed by law. An act necessary in this behalf is a presentment of the check to the bank upon which it was drawn. The law says this must be done in a reasonable time. * * *
"When, therefore, as appears on the face of the complaint before us, the check was delivered and accepted in the city where the drawee bank is situated, the reasonable time expired at the close of the next business day, as stated in Matlock v. Scheuerman, 17 L.R.A. (N.S.), 747, and note (51 Or., 49;93 Pac., 823). If beyond that the holder delays presentment for six years, the statute of limitations, considered as one of repose, stills any effort to enforce the liability of the drawer. The holder cannot thus keep the check indefinitely as a menace to the drawer in defiance of the law requiring presentation within a reasonable time and thus extend the statute of limitations ad libitum. Consequently presentment is mandatory, and cannot be dispensed with, so that, if more than six years have been allowed to lapse where all parties, including the drawee, are in the same city, no action can be maintained upon a presentment made after that time." 179 P. page 916, 4 A.L.R. pages 878, 880.
The Iowa court in the very recent case of Lovrien v. Oestrich,214 Iowa 298, 242 N.W. 57, which involved an action upon *Page 1261 a promissory note, payable thirty days after demand, said at page 299:
"It was wholly within the power of the holder of the note to make demand and thereby determine the time of maturity. It was, therefore, incumbent upon him to make demand within reasonable time, and in such case demand must be made within the time prescribed by the statute of limitations for commencing suit. A creditor may not by his own act or neglect delay or postpone the running of the statute. The holder might have made demand on the date of the note, December 1, 1916, and thereby matured his cause of action in 30 days thereafter. The statute of limitations began to run at the end of 30 days from the date of the note and action upon it was barred in 10 years thereafter, within the principle of Great Western Telegraph Co. v. Purdy, 83 Iowa 430, 433 [50 N.W. 45]; Hodgson v. Keppel, 211 Iowa 795, [232 N.W. 725]; Citizens Bank v. Taylor, 201 Iowa 499 [207 N.W. 570]; Prescott v. Gonser, 34 Iowa 175, 179; Wilson v. Stipp, 194 Iowa 346, 350 [189 N.W. 665]; and recognized Reizenstein v. Marquardt, 75 Iowa 294 [39 N.W. 506, 1 L.R.A. 318, 9 Am. St. Rep. 477]."
It therefore seems to me, there being no distinction between a draft and a check, it was incumbent upon the holder of the draft to make presentation within a reasonable time. No claim is made here that he made presentation within a reasonable time. A period of over 19 years elapsed, and, as stated by this court in the case of Lovrien v. Oestrich, supra, "a creditor may not by his own act or negligence delay or postpone the running of the statute." Clearly, a delay of over 19 years is an unreasonable one, and the plaintiff, by failing to make the necessary demand on the bank, within the provisions of the statute of limitations, all of which was due to his own negligence, allowed his claim to lapse. The lower court, it seems to me, was right in sustaining the demurrer, and I would affirm the decision of that court.
I am authorized to state that ANDERSON and MILLER [ERNEST M.], JJ., join in this dissent.