On the 13th day of June, 1887, C. J. Kershaw
& Co. drew their check on the American Exchange National Bank of Chicago, appellant, for $10,000, payable to the order of M. Bosenfeld & Co., and on the same day delivered a cheek to the payee. On the 14th of June, M. Bosenfeld & Co. presented the check to the appellant at its bank for certification, and afterward, on the same day, deposited the check Avith appellee. Appellant refused to certify the check Avhen it was so presented. The check Avas received by appellee in the usual course of business on the 14th, and on the morning of the 15th of June, the appellee presented the check to the cashier and assistant cashier of appellant before the opening of the bank on that day, and explained to it why the check had been given. Immediately upon the opening of the bank at ten o’clock, the appellee, through its messenger, Fred M. Blount, presented the check to appellant and demanded payment of the same. The appellant took the check Avhen payment Avas demanded and endorsed upon it the Avords, “American Exchange National Bank, Chicago, returned account payment stopped,” and returned it to the messenger refusing to pay the same. The check Avas never paid. On the 14th day of June, the day the check was first presented to the appellant for certification, the books of appellant showed a credit to the account of O. J. Kershaw & Oo. of funds .on hand in the amount of $11,401.17. This balance was on the hooks of the appellant on the 14th at the time the check was first presented, and was continued on the books until the bank opened on the morning of the 15th. This balance was there when the messenger talked Avith the cashier and the assistant cashier before the opening of the bank on the 15th. The appellant at the time of the intervieAv betAveen the messenger and the cashier on the morning of the 15th, stated that payment of the check Avas stopped, and that was the only reason given why the bank would not pay it.
The appellant received its instructions to stop payment of the $10,000 check from C. J. Kershaw & Co., on the evening of the 14th of June, and claims that it was notified to the same effect on the morning of the 15th. Both notices were subsequent to the presentation of the check in suit for certification and its transfer to appellee. At the time of the interview with the cashiers of appellant on the morning of the 15tli of June, and also at the time of the presentation of the $10,000 check for payment at the opening of the hank, appellant held in its possession for the account of C. J. Kershaw & Co., two drafts, each for the sum of $100,000, one payable to the order of C. J. Kershaw & Co., the other to the order of appellant; also a letter of advice which appellant had received to.the effect that Messrs. Wilshire, Eckart & Co., of Cincinnati, had deposited $200,000 to the credit of appellant for the use of C. J. Kershaw & Co., from which appellant deducted $800 for exchange, leaving a total credit to C. J. Kershaw & Co. of $399,200, which would make, if credited on the books, together with the $11,401.17 carried over from the 14th, a total credit to C. J. Kershaw & Co., of $410,601.17, on the morning of the 15 th.
Appellant did not enter the credit of the two drafts and letters of advice on the books, immediately on receiving the same, but the drafts afid letters were about 12:30 or one o’clock p. ii., upon the loth, placed to the credit of C. J. Kershaw & Co., on the books of appellant.
On the 13th day of June, C. J. Kershaw &Oo. issued their check to D. Eggleston & Son for $256,878.18, which check was deposited by D. Eggleston & Son with appellant on the same day. Eggleston & Son and C. J. Kershaw ’& Co. both kept their accounts with appellant. Appellant did not charge the check to C. J. Kershaw & Co.’s account at any time until after the opening of the bank for business on the morning of the 15tli. They, however, gave credit to D. Eggleston & Son for the amount of the check on the 13th, the day of its deposit, but on the morning of the 14th, after an interview with D. Eggleston & Son, appellant reversed the credit to Eggleston & Son, and charged back to them the amount of the check credited the day before.
During the whole of the 14th, the day the check in suit was presented to appellant for certification, and at the time it was assigned and delivered to appellee, C. J. Kershaw & Co. had upward of §11,411.17 of funds in the hands of appellant, the last named sum being the amount on hand at the close of business on the 14th.
On the morning of the 15th after the two §100,000 drafts and letter of advice had been received, the appellant, for the first time, charged up to C. J. Kershaw & Co., the Eggleston & Son check of §256,878.18.
Some checks of C. J. Kershaw <& Co. were certified on the morning of the 15th before the cheek in suit was presented for payment, but it is net shown by the evidence what was the amount or number of such checks. A list of the Kershaw checks in the order in which they were certified by appellant that day was presented by the paying teller and is in evidence and there is some proof tending to show that appellee’s agent, stood sixth or seventh in the line in front of the paying teller’s window in the morning, and from this it is argued that at least the first six checks shown on the paying teller’s list were certified before the one in suit was presented, and that, therefore, when it was presented, Kershaw & Co. were not in funds, even if the two §100,000 drafts and the letters of credit he counted as to tlieir credit on the morning of the 15th. The difficulty with this argument is that it assumes that all the persons who stood ahead of appellee’s agent in the line, presented and obtained the certificate of Kershaw checks.
There is no evidence in the record to justify such assumption. Though appellee’s agent stood sixth in line, there is nothing to show that he did not present the second or third Kershaw check that was presented to the cashier that morning. Assuming that the two drafts and the letter of credit were to the credit of Kershaw & Co., on the morning of the 15th, appellant has failed to prove that there was not funds sufficient to pay appellee’s check at the time it was presented and payment demanded.
But appellant contends that the two drafts and the letter of credit was not to the credit of Kershaw & Co. till after twelve o’clock on the 15th, and therefore there were no funds to pay this check when it was presented.
It is true that it appears that the drafts and letter of credit were not entered on the books to the credit of Kershaw & Co. till after noon, but it appears to us to be fairly established by the evidence, that as between appellant and Kershaw, these drafts and the letter of credit were treated as being to Kershaw & Co.’s credit' from 10 o’clock in the morning. We can explain appellant’s conduct, in charging the Eggleston check and continuing to certify Kershaw & Co.’s checks during the forenoon of the 15th, on no other theory.
There appears to us, also, to be strong reason for holding that the presentation of the check in suit to appellant’s cashier before the opening of the bank, and his statement to appellee’s agent that the payment of the check had been stopped, and that it would not be paid if tendered for payment, rendered any. further presentation of the check unnecessary, and that the rights of the parties would be determined by the condition of Kershaw & Co.’s account at that time, as wo have seen there was then to the credit of said account, on the books of the bank, sufficient funds to pay the check. We do not deem it necessary to elaborate this question. If the latter position is not legally tenable, we are satisfied that the judgment, is sustained on the ground that when the check was presented to the teller for payment there was then funds to the credit of the drawers sufficient for the payment of said checks.
The judgment of the Superior Court will be affirmed.
Judgment affirmed.
Gaby, J., took no part in deciding this case.