delivered the opinion of the court:
Counsel for defendants in error object that the transcript of the record is incomplete and insufficient to present the errors insisted upon. The principal question raised in the Appellate Court, and again in this court, is whether the above named checks constituted payments by Schintz to Brown on the $3200 building loan. The parts of the record contained in the transcript sufficiently present that question, and for such purpose the transcript is sufficient. (See authorities cited in the opinion of the Appellate Court.) Of course, errors cannot be insisted upon which the transcript fails to show. As was said in Bertrand v. Taylor, 87 Ill. 235: “This court cannot properly consider any question arising upon the record unless we have a full record before us, or it is made known to us in some approved manner that the transcript contains all parts of the record material"to the question submitted to us for decision.” See, also, Culver v. Schroth, 153 Ill. 437; Deimel v. Parker, 164 id. 627.
It is further objected that the transcript is insufficient because the certificate of evidence certifies only what the evidence tended to show. For the purpose of raising legal questions it is sufficient if it appears from the bill of exceptions or certificate that the evidence tended to support the issue. Costly v. McGowan, 174 Ill. 76; Johnson v. Johnson, 187 id. 86.
On the principal question, as above stated, the controversy is between Brown and wife and Huber and Mann, whether or not the decree in favor of the latter is, under the law, authorized by the facts. They claim only the amount of the two checks mentioned in the foregoing statement, amounting to $1200, and interest to be prorated between them according to the amounts held by them, respectively, against Brown, their contention and the holding of the courts below being that such checks were payments, upon the consideration for which their trust deeds were given, — that is, an advancement to that amount by Schintz upon the building loan. It is conceded that, deriving their interest in those trust deeds by assignment from Schintz, they held them subject to all the infirmities to which they would have been subject in his hands. The position of counsel for plaintiffs in error is, that under the facts the making and delivery of said checks to Thomas Brown were in no proper sense payments upon said loan, and therefore the consideration for the notes and trust deeds wholly failed, — a complete defense against the trust deeds in the hands of Schintz, and, consequently, against his assignees. They say these checks were absolutely worthless. But that is not a fair statement of their real character. At the time, they were drawn and delivered to Brown, the drawer (Schintz) had funds on deposit sufficient to pav them in full, and hence they were at that time perfectly good. Although they were not actually paid to the parties to whom Brown assigned them, that was because the parties failed to present them to the Merchant’s Loan and Trust Company in apt time. The non-payment was attributable wholly to 4he negligence of the holders. All parties agree that the' bank being located and all parties interested residing in the same city, it was the duty of the payee or his assignees (the same diligence being required of the assignees as of the drawee) to present the checks to the bank for payment on the same day, or, at farthest, the next day, after they were delivered and endorsed, within banking hours, and that the failure to do so absolutely discharged the endorser, Brown. (Bickford v. First Nat. Bank, 42 Ill. 238; Story on Promissory Notes, 495; Strong v. King, 35 Ill. 9; 5 Am. & Eng. Ency. of Law, —2d ed. — 1042; 2 Daniel on Neg. Inst. 516; 2 Randolph on Com. Paper, 1103; Merchants Bank v. Spicer, 6 Wend. 443; Little v. Phehix Bank, 2 Hill, 423; Veazie Bank v. Winn, 40 Me. 60.) The maker, Theodore H. Schintz, however, remained liable unless he suffered some loss by reason of the holder’s failure to present them in apt time. (See same authorities.) Brown received the checks on Friday, July 16, and immediately endorsed them to his contractors in payment of his liability to them. They neglected to present them to the bank on -or before the next day, Saturday, the 17th, but held them until the following Monday, the 19th, when payment was refused. It is agreed that if presentment had been made on Saturday they would have been paid in full. Under this state of facts there can be no doubt that Brown, as endorser, was discharged from all liability upon them.
It is welRsettled that as between Brown and the parties to whom he endorsed the checks there was, under the facts, an absolute payment of his liability to the endorsees to the amount of $1200. Thus, it is said in Story on Promissory Notes (sec. 104): “If a creditor accepts the note of a third person, or draft or bill, though not in payment, he accepts the duty of doing everything necessary to fix the liability of the parties to the paper.” And again (sec. 117): “On the other hand, the party receiving the same is bound, under such circumstances, to make due presentment of the note and to give due notice of its dishonor, otherwise by his laches he makes the note bis own and discharges the party from whom he received it from any loss sustained thereby.” In his work on Bills of Exchange (4th ed. sec. 112,) the same author says: “The receipt of a bill implies an undertaking on the part of the endorsee, receiver or other holder, to every other party to the bill who would be bound to pay it and who would be entitled to bring an action on paying it, to present it in proper time when necessary for acceptance, and at maturity for payment. A default in any of these respects will discharge the party in respect to whom there has been any default, and who otherwise would be bound to pay the same, from all responsibility on account of the non-acceptance or non-payment of the bill, and will operate as a satisfaction of any debt or demand for which it was given.” Daniel, in his work on Negotiable Instruments, (sec. 1623,) states the rule as follows: “The receipt of a check, therefore, before presentment, if there is no laches on the part of the holder, is not payment of the debt for which it is delivered. But if the party receiving it is guilty of laches in presenting it, and the bank in the meantime suspends payment, he thereby makes it his own and it shall operate as payment of his debt, the drawer having funds in the bank at the time of drawing the check and not having withdrawn them.” See, also, 3 Randolph on Com. Paper, 1562.
This controversy, as before said, is between Brown and wife and Huber and Mann. The assignees of the checks are not parties to this writ of error and their rights are in no way involved. Brown received the checks in part payment upon his contract with Schintz to furnish the money for the building, in consideration of which his notes and trust deeds were.executed. He paid them on his liability to bis contractors under circumstances which made that payment absolute, and legally-discharged him, to that extent, from all further liability upon that indebtedness. How can he then be heard to-say he received no part of the consideration for which his notes and trust deeds were executed?
It is claimed by counsel for plaintiffs in error that the-holders of the checks produced them before the master, who returned them into court with his report, and they say they are not outstanding and will be treated as canceled, within the rule announced in Heartt v. Rhodes, 66 Ill. 351. As a matter of fact, the record shows that the one for $1075, assigned to' Wheatman & Boulton, was-offered in evidence on behalf of Huber and Mann, and the one for $125, assigned to Dwyer, was introduced by, Brown. We find nothing whatever in the record tending-to show that they were at any time tendered back to-Brown by his endorsees, or that he had authority or at any time attempted to surrender them to be canceled. The larger one was offered in evidence to prove the-indebtedness claimed by Huber against Brown, and the-smaller one to disprove the existencé of a mechanic’s lien in favor of Dwyer. If Brown had waived his legal right, to insist upon the payment to his contractors and taken up the checks and brought them into court, offering to-surrender them, the case of Heartt v. Rhodes, supra, might, have some application, in principle, to the case at bar,, but in Brown’s present attitude if has no application.
We are unable to see, from the facts before us concerning the assignment by Schintz for the benefit of his creditors, (there being an absence of proof as to what, if' anything, had been done under that assignment at the-time the checks were presented for payment, or since,) why the holders could not have compelled the bank' to pay them, or, at least, maintained a preferred claim. against the estate of Schintz in the hands of his assignee. The checks operated as an assignment of so much of the deposit of Schintz in the Merchant’s Loan and Trust Company as they called for, to Brown and his assignees, and when they were presented to the bank it became liable to pay them, provided Schintz had funds to that ■amount in its hands subject to his check at the time they were presented. (Munn v. Burch, 25 Ill. 21; Brown v. Leckie, 43 id. 497; Wyman v. Fort Dearborn Nat. Bank, 181 id. 279, and cases cited.) The failure to present them for payment within a reasonable time, as above stated, did not relieve the bank from the duty of paying them, provided there were funds to the credit of Schintz when they were presented, sufficient to pay them. The bank refused to pay them, not because any part of the §2000 on deposit with it had been drawn out or checks drawn against it which had been previously presented, but simply because Schintz had made an assignment for the benefit of his creditors. It is said by Mr. Daniel in his work on Negotiable Instruments (vol. 2, p. 558): “We have seen already that a check operates as an assignment of the fund on which it is drawn, pro tanto, from the very time it is drawn and delivered, as between the drawer and the payee or holder; and secondly, that the assignment binds the bank as soon as the check is presented; thirdly, that as between the drawer and holder on the one part, and a party claiming under a subsequent assignment on the other, that if the latter holds a check also, and first presents it, he thereby acquires priority over the check not previously presented. And any subsequent assignee to whom the bank had assented to pay the amount would in like manner acquire priority, as the bank would be bound to pay him in preference to the prior checkholder who had not presented the check. But if the checks were presented before any subsequent assignee had obtained the assent of the bank, and thus brought it in privity of contract with it, we should say that by such presentment the checkholder acquired priority, for the reasons that have been heretofore considered; and, therefore, a general assignment for the benefit of creditors would not defeat the checkholder although he had not presented the check,” — citing Roberts v. Austin, 26 Iowa, 327. This doctrine would seem to be consistent with our decisions. But however that may be, it cannot be said, on the evidence in this record, that the checks are wholly worthless, or, in fact, that they are not worth their face value either against the bank or the assignee of Schintz, even in the hands of the assignees of Brown. Certainly, Brown having received and retained the full face value of them, he cannot be heard to say they are without'value, and he alone is here seeking to have them so declared.
Counsel for plaintiffs in error says that defendants in error are attempting to receive something for nothing. It is not denied that they paid in money not only the $1200 which they are seeking to recover for the notes and trust deeds, but the full consideration named therein, $3200. Thomas Brown is, in fact, the party who seeks to avoid all liability on his notes and trust deeds, notwithstanding he had received the full benefit of the amount of said checks.
Some of the other alleged errors are not properly raised by the transcript, but they, with all others insisted upon, are properly disposed of by the opinion of the Appellate Court.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.