There was some evidence introduced by the plaintiffs below, tending to show that Hogue mailed the Chicago draft to Edwards Bros., but it is not sufficient to lead us to believe such was the fact, the decided weight of the evidence, in our opinion, being that Heil received the draft himself, at the time he signed and presented the check for it. This, perhaps, in the present aspect of the case, is not very material, as the plaintiffs below elected voluntarily to base their right of recovery on the check itself, and not upon the draft. The rule in this State, undoubtedly, is as contended for by defendants in error, “ that when a depositor draws his check on his banker, who has funds to an equal or greater sum than his check, it operates to transfer the sum named to the payee, who may sue for, and recover the amount from the bank, and that a transfer of the check carries with it the title to the amount named in the check to each successive holder.” Union National Bank v. Oceana National Bank, 80 Ill. 212.
The check in this case is not of that character. It was drawn payable in Chicago exchange, and if it had been delivered to the payee, and the drawer had funds in the bank, it could not have the operation contended for. We do not understand that a banker is obliged to pay a check drawn by a depositor, payable in anything but money. Whether he will give exchange upon the request contained in the check is matter of agreement. Besides, in this case it was not intended that Edwards Bros., should have any sum set apart to their use or credit in the bank of plaintiff in error, or in any other bank, neither were they to receive the check of Neil for the payment of his debt to them. By their agreement with Neil, lie was to send them Chicago exchange for the balance coming to them, and they did not know where Neil was to obtain it. Kor the purpose of complying with his agreement with them, Neil made the arrangement with Hogue to still further overdraw his account and obtain exchange payable to them, and in so doing drew his check payable to them presented it to the bank himself and received the draft.
In all this transaction there is nothing in conflict with the agreement between Neil and Edwards Bros., but every step taken was in fulfillment of it. Suppose Neil had drawn his check payable to himself and in payment thereof had requested and obtained the draft payable to his creditor; wherein would the transaction have differed in legal effect from the one that actually occurred? Edwards Bros, relied upon Neil to send them a Chicago draft. It was immaterial to them how or where he obtained it. He made use of the means stated to obtain the draft, and thus far complied with his agreement. But for some reason he. refused to make use of the draft to pay his debt, and still retains it. Under ail the circumstances of the case, we consider the check was but a request by Neil upon Hogue to deliver him a Chicago draft payable to his creditor. The check'not being delivered to the payee, but retained and presented by Neil for the purpose of obtaining the draft, is but the common case of a debtor going to his banker and getting exchange payable to his creditor, and then neglecting to send it to the payee.
In such case there is no such privity between the creditor and the banker as will support an action against the bank.
It is suggested that Neil might, in this case, be treated as the agent of Edwards Bros., and the presentation of the check to the bank be considered as their act.
This position is not sustained by the record, if it could be admissible in any case for the drawer of a check to deliver it to himself as agent of the payee. In all these transactions Neil was acting for himself. He made the purchase for himself or his firm, and in obtaining the draft was taking the steps agreed upon to pay 1ns own debt.
As this action, in its present condition, is based upon the check, and that being drawn, payable in Chicago exchange, if it was delivered to Edwards Bros., through their agent, Neil, as suggested, then he must have been their agent to receive the exchange, and having received it, the purpose of the check was accomplished, and it would seem that their remedy would be upon the draft, if any they have.
As Neil did not provide for the draft as he agreed to do> and the draft not having been delivered to Edwards Bros., and no claim to recover upon it being asserted by them, they cannot complain that Hogue, after Neil absconded, and after summons issued in "this case, stopped payment of thet draft, by the Chicago Bank.
As the case is presented by this record, we are of the opinion that no right of recovery is shown, and the judgment must be reversed and the cause remanded.
Judgment reversed.