Opinion bx
Mb. Chief Justice Stebbett,The facts upon which judgment of the court below was asked appear in the case stated and need not be repeated at length. In substance, it appears that the plaintiffs, being indebted to their landlord, one of the defendants, for a month’s rent due in advance, sent him a check on the Penn Safe Deposit and Trust Company for the amount thereof, on May 6, 1891, after three o’clock p. M., which was after banking hours of the" company on which the check was drawn. The “ check was accepted by *71him and a receipt in regular form given therefor.” On the following day, “ in the usual course of business,” he deposited the check in the Penn National Bank where he kept his banking account; and on the next day, May 8, 1891, it was presented for payment to the drawee bank at its place of business in Philadelphia during banking hours, but after 11.30 o’clock, at which hour the drawee failed and ceased to do business. When defendant received the check, and thereafter until the drawee failed, the plaintiffs had on deposit with it to their credit more than sufficient funds to pay the dishonored cheek. Plaintiffs having refused to make good their check, the defendant landlord distrained for the month’s rent, and thereupon the goods were replevied, etc.
After reciting the facts agreed upon,—of which the foregoing is merely an outline,—the case stated provides : “ If the court be of opinion that the said check was a payment of the rent so due as aforesaid, .... then judgment for the plaintiffs, otherwise judgment for the defendants,” etc.
It is claimed by plaintiffs that, upon the facts presented in the case stated, the acceptance of the check by defendant was absolute payment or satisfaction in full of the rent, and therefore a waiver of the right to distrain therefor ; but, if this position is not sustained, they further claim that due diligence was not exercised in presenting the check for payment.
As to the first proposition, it is sufficient to say that the case stated contains no averment of fact or admission to the effect that the defendant landlord accepted the check as unconditional payment and in satisfaction of the rent or in any manner waived his right of distress.
A case stated is in the nature of a special verdict and is subject to the same rules. It is well settled that a special verdict must set forth facts and not the evidence from which facts may be inferred: Kingsley v. Coyle, 58 Pa. 461. All the facts must be distinctly and unequivocally set forth, and nothing left to inference ; whatever is not expressly and distinctly agreed upon and set forth as admitted must not be taken to exist: Diehl v. Ihrie, 3 Whart. 143 ; Seiple v. Seiple, 133 Pa. 460 ; Railroad Co. v. Waterman, 54 Pa. 337; Berks Co. v. Pile, 18 Pa. 493; Mutchler v. Easton, 148 Pa. 441. It therefore follows that the only question properly presented by the ease stated is whether *72due diligence was exercised in presenting the check for payment. If it was not presented and payment demanded in due time, the plaintiffs should not be visited with the loss resulting from failure of the bank on which it was drawn.
Where the facts are admitted, the question of reasonable time is one of law for the court: Morse on Banking, 389; 3 Kent’s Com. 91; Rosenthal v. Ehrlicher, 154 Pa. 399. It is admitted that the check in question was received by defendant on May 6, 1891, after banking hours of the drawee bank. If the customary hours of banking may be considered in passing on the question of due diligence,—and there appears to be no reason why they should not,—it is very evident that nothing could have been done with the check on the day it was received. The banking day of the 6th had already ended, and for all practical purposes it was the same as if the cheek had been received before banking hours on the 7th instead of after banking hours on the 6th, because no effective step, towards presentation for payment, could have been taken earlier than commencement of banking hours on the 7th; and it is conceded that, if the check had been received on that day, it was presented within a reasonable time. In sending their check after close of banking hours on the 6th, the plaintiffs certainly knew that it could not be presented before banking hours on the next day. Considering the hour of the day when the check was delivered to defendant, it is practically the same as if, in express terms, it had been made payable on the following day. There is therefore no good reason why it should not be treated as received on the 7th instead of the 6th of May, 1891.
Plaintiffs mainly rely on the authority of Bank v. Weil, 141 Pa. 457, in which this court,—adopting the opinion of the learned trial judge,—held that a check on a bank, where all the parties are residents of the same city, must be presented on the day upon which it bears date or on the next day; and if not so presented, the risk of insolvency of the drawee is upon the payee. In that case the learned judge, referring to the check then in controversy, said: “ nor is any reason suggested why it could not have been presented at once, or anything connected with the transaction to indicate to the drawer that it would not be presented at once. If presented on the day of its receipt it would have been paid; if deposited by him in a city bank on *73the day of its receipt it would have been presented on the next day and paid; ” and he accordingly applied the rule above stated because, as he says, there was “ no circumstance ” to exempt the case “from its operation.” That case proceeds upon the assumption of what was doubtless a fact in the case, viz: that the check was received long enough before the close of banking hours, of the day of its date, to have enabled the payee to present it for payment or deposit it for collection on the same day. In that respect it differs materially from the case at bar ; and that difference is, in our opinion, a circumstance which justifies us in holding that there was no unreasonable delay in depositing the check for collection on the day after it was received and presenting it for payment on the next day thereafter. As we have seen, it was simply impossible either to present the check in question for payment, or to deposit it for collection on the day it was received.
In every large commercial metropolis like Philadelphia, in which clearing houses are established, the customary mode of collecting checks drawn on banking institutious therein is by depositing them in bank for collection, etc. According to the ordinary course of business, checks thus deposited are presented for payment on the next ensuing business day. That appears to have been the course pursued by the defendant in this case; and unless the rule above quoted from Bank v. Weil, supra, is restricted in its operation to checks received during banking hours and a sufficient time before the close thereof to enable the payees either to present them for payment, or to deposit them for collection, on the day they are received, the usual course of business will be most seriously disturbed. Such limitation is fully warranted by the facts of that case as we understand them.
We are of opinion that upon the facts as presented in the case stated there was error in entering judgment for the plaintiffs.
Judgment reversed and judgment is now entered in favor of the defendants and against the. plaintiffs for forty dollars with interest from May 1,1891 and costs, including the costs of this appeal.