I dissent. The question involved here is, in my opinion, one of negligence rather than of statutory construction, and the majority opinion rewards the slothful and negligent, and penalizes the diligent. Plaintiff's tardiness might be excused if in the presentation of the coupons it had been late for only a day or two or a week, but when, though due in July, they were not presented until October, a case of such gross neglect is presented which, because of the stretch of time elapsing, takes it out of any case I have been able to find supporting the rule laid down by the majority, unless we concede that negligence of any degree, regardless of the loss the innocent party may incur, is not to be taken into account in interpreting the provisions of section 8477, Revised Codes 1921. The rule, that one who by his neglect causes another loss shall answer to the other to the extent of such loss, is fundamental and as old as the law itself.
Defendant, by the business custom prevailing in such matters, was required to have its money at the New York bank on July 15, 1931, to meet the payment of plaintiff's coupons. The defendant fulfilled its obligation and had the money there. The suggestion that defendant itself was wanting in diligence I do not think sustained by the record. Furthermore, when it was sued it pleaded such fulfillment of its contract as it *Page 400 believed afforded it full protection, and to then attempt to go into a foreign jurisdiction and set up a defense such as that suggested would have been an abandonment of the defense pleaded in this action — an acknowledgment of its lack of faith in the defense pleaded, and that before its rights were determined here.
Plaintiff, in spite of the unsettled business conditions which prevailed at that time, neglected to exercise the prudence required of the average man, and made no move to obtain its money for the coupons until on October 6, when it delivered them to the Denver bank for collection, and by the time they reached New York that bank had closed. It is clearly obvious that plaintiff's tardiness was the sole cause of the loss involved, and the judgment of the lower court should be affirmed.
Rehearing denied May 3, 1935.