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Pack v. Thomas.

was drawn, deposited in that bank, and yet had a sufficient sum in Brandon bank notes, with which to pay the check, in that paper; when the check was drawn witness was, and yet is, cashier of said bank. That when Thomas, the defendant, made the deposit in Brandon money, witness informed him, that it would only be received on deposit, to pay out the same funds as a kind of special deposit, and that they would not pay cash. That he so informed all depositors of that kind of money; at the time the deposit was made, Brandon money circulated in payment of debts, and that he received it in payment of discounts. That the bank had failed, and its paper was of no value. That the check was presented to him and he refused payment in cash, but would have paid in Brandon money. He also stated that the bank furnished blank checks, and persons who had deposited Brandon or Citizens' bank notes, usually filled up and drew their checks in the form of the one sued on.

The defendant then called Edwin Stephens as a witness, who stated, he had had a conversation with Pack, the plaintiff, in which Pack stated, that he had met with the defendant in the streets of Canton, when the defendant informed him, that he had collected for him a debt as attorney, for which he had received Brandon bank notes, and inquired of him, Pack, if he would receive the Brandon notes; Pack answered that he would not; that they then separated and again met, when Thomas again inquired of Pack, what he, Thomas, ought to do with the notes. Pack replied, that his advice would be to deposit the money in the Commercial bank. That they met a third time, when Thomas informed him that he had made the deposit, and offered him a check on the bank, which Pack received without saying whether he would or would not receive Brandon money. That his reason for receiving the check was, that he thought the bank would use the Brandon money, and pay him in cash.

That Pack also said, he believed that if Thomas had not received Brandon notes, he could not have collected the debt. This was all the evidence. The plaintiff objected to Stephens's evidence as inadmissible. The objection was overruled, and the plaintiff excepted.

Pack v. Thomas.

The plaintiff moved the following instruction, viz:

If the jury believe from the evidence, that at the time Thomas, the defendant, drew the check sued on, he had not funds in the bank with which to pay the same in cash, nor any part of it, but only had Brandon notes deposited by way of special deposit, to be paid out in the same notes, and that he knew that cash would not be paid by the said bank, on account of such deposit, they ought to find for the plaintiff; which the court refused to give.

On motion of the defendant, the court instructed the jury

1. If they believe from the evidence, that the defendant had, at the time of drawing the check, any reasonable ground to believe that the check would be honored by the bank on which it was drawn, he was entitled to due notice of dishonor, if the check was dishonored, and the law is for the defendant.

2. If they believe from the evidence, that the defendant had reasonable ground to believe, that the check would be paid and that the check was dishonored by the bank, and that the defendant sustained damage or injury by not receiving notice in due time, of non-payment by the bank, the plaintiff cannot recover in this action, and they must find for the defendant.

3. If the jury believe from the evidence, that the Brandon money was deposited by the defendant in the Commercial bank of Natchez, in consequence of the advice or authority of the plaintiff, and that afterwards the plaintiff took of the defendant the check declared on; and that the said plaintiff then knew that the said check was drawn on the faith of the Brandon money, so deposited by the defendant, then the defendant was entitled to due notice, if the check was not paid, and if no such notice was given, the plaintiff cannot recover.

To the refusal to give plaintiff's instruction, and to giving defendant's, the plaintiff excepted; and upon the rendition of a verdict for defendant, sued out this writ of error.

D. Mayes, for plaintiff in error, maintained,

1. The court erred in not ruling out the evidence of Stephens, as it was evidence to vary the legal effect of the check, as it

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read on its face. The legal effect was, that if Thomas drew it, not having funds to meet it, presentment and notice were unnecessary. The effect which the evidence of Stephens was intended to have, and which it was made to have on the trial, was to make presentment, and notice of non-payment necessary. The legal effect of a writing cannot be varied by verbal agreements or understandings, preceding or accompanying its execution. 3 Phillips, Ev. 1470; Com. Bank of Lake Erie v. Norton, 1 Hill's N. Y. R. 509.

The court should have instructed as asked by the plaintiff. If the drawer of a check has not funds in the hands of the drawee, no notice is necessary. 1 Mann. & Grang. 757; Kemble v. Mills, 39 Eng. C. L. R. 655; Judge Story, In the matter of Brown, 2 Story's R. 519; Walwyn v. St. Quintin, 1 Bos. & Pull. 655. See also True v. Thomas, 16 Maine, 4 Shepl. R. 36; Franklin v. Vanderpool, 1 Hall's R. 78; Mohawk Bank v. Broderick, 10 Wend. R. 308; Story on Prom. Notes, 624, § 492; Ib. 629, 497. "The reason is, that if he drew the check without having funds, he had no right to expect payment of the check, and his conduct amounted to a fraud and imposition upon the payee.

3. But another fact is worthy of consideration. Thomas was the attorney of Pack; he drew this check for money due from him to his client, knowing the check would not be paid. The relation of client and attorney still continued. When he gave the check, even if he believed it would have been paid, it was his duty to have informed his client that he must present it, and if not paid give him notice. Instead of doing this, he draws the check, knowing it will not be paid, and then seeks to shelter himself under want of notice, and throw the loss on his client, whom he was bound by law, by duty, and by honor, to guard against loss, and advise with fidelity and learning. Will the law help him?

4. The court erred in the first instruction, asked by defendant. According to that instruction, if Thomas had drawn the check without having deposited Brandon notes, or any thing else, and never had any means in bank to take up the check, or

Pack y. Thomas.

any part of it, and did not lose any thing by want of notice; yet if he had reasonable ground to believe that it would be honored; for example, if the cashier had promised to pay without funds, or if he had formerly funds, and had checked all out, but by mistake believed he had funds; the law was for him, and the jury should find for him. The authorities before referred to, abundantly prove the contrary.

5: Nor should the second instruction, asked by defendant, have been given. By that instruction, if the defendant sustained damage, no odds to how small an amount, the plaintiff could recover nothing. Whereas, if he sustained damage, he should only be discharged to the extent of that damage, to be ascertained by the jury. Story on Prom. Notes, 630, sec. 497, and authorities there cited.

6. The court also erred in the third instruction given.

It conveys the idea, that if defendant knew that plaintiff drew the check on faith of the Brandon money, the plaintiff was bound to give the notice, although defendant knew when he drew the check that it would not be paid, and concealed from the plaintiff, his client, a knowledge of that fact. It also goes on the idea that there was evidence conducing to prove the state of fact, to which the instruction has reference. If, by the words, "in faith of the Brandon money," is meant, in faith that the check would be paid, there was no evidence that tended to establish such an hypothesis. If that was not meant, then the instruction was not law. If it was correct as an abstract proposition, its tendency was to mislead. No instruction should be given, but upon evidence in the case. Chesapeake f. Ohio Canal Co. v. Knapp et al., 9 Peters, 568.

A. H. Handy, for the defendant in error.

He insisted that the evidence of Stephens was competent and properly admitted.

1. It did not contradict the check, nor vary its import. It had reference to the question of notice and damage. 20 John. R. 146; French v. Bank of Columbia, 4 Cranch, 153; Campbell v. Peltengill, 7 Maine, (Greenl.) 126; Chitty on Bills, 356 – 468, edit.

Pack v. Thomas.

9th American from 8th London. As to the strictness required on checks, as to demand and notice, see 10 Wend. 306; 6 Cow. 490; Story's Prom. Notes, § 492; 2 Hill (N. Y.) 425. The onus of showing no damage on account of non-presentment and failure of notice, is on the plaintiff. Story's Prom. Notes, 5498; 2 Hill (N. Y.) 428.

2. The evidence was competent, because it went to show a failure of consideration for the check. 6 S. & M. 358; 2 Ib. 258 - 514.

3. Even if the evidence did explain the legal import of the check, by showing that the funds referred to in the check were a particular kind of money, it is by no means clear that this is incompetent. Many modifications of the rule, as to the inadmissibility of parol evidence, to explain a written instrument, have been made. 3 Phil. Evid. (Cowen & Hill,) 1473; Campbell v. McClenachan, 6 S. & R. 171.

It is also held that bank notes are considered money for many legal purposes. Miller v. Race, 1 Burr. 452; 9 Johns. R. 120; 1 Ohio Rep. 81. Hence, when a written contract merely states an amount in dollars and cents, it is held that it may be shown by parol that it was agreed at the time to be paid in bank bills. Morton v. Wells, 1 Tyler, 381, cited in 2 United States Digest, 304, pl. 2325; Ib. pl. 2317.

Mr. Chief Justice Sharkey delivered the opinion of the court.

This action was brought on a check for $1335, drawn on the branch of the Commercial Bank, of Natchez, at Canton, by Thomas in favor of Pack. There was a verdict for the defendant, and it is now insisted, that the court erred in admitting testimony, and also in its charges to the jury.

The first point raised relates to the admissibility of Stephens's testimony, which was to this effect: in conversation, Pack stated to the witness, that he (Pack) had met defendant, Thomas, in Canton, who informed him, that he had collected a debt for him as attorney in notes of the Brandon Bank, and asked Pack if he would receive them in payment; Pack replied that he would not, and they separated. They met again, when Thomas asked Pack what he ought to do with the Brandon notes; the

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