
    John J. Godin v. The Bank of the Commonwealth.
    Although the date of a hank check is not material to its validity, it determines the time of its payment. Hence, the payment, by a bank, of a post-dated check before the day upon which it is dated, is a payment in its own wrong, and the money so paid remains to the credit of the drawer.
    The assignee, in good faith, of this fund, may maintain an action against the bank for its recovery.
    A Judge is not bound to submit a question of fact to the jury, when their verdict, if contrary to his views of the testimony and its legal effect, would be certainly set aside, as against law and evidence.
    (Before Oakley, Ch. J., Duer and Slosson, J.J.)
    June Term, 1856.
    Appeal from a judgment at Special Term in favor of the plaintiff, and denying a motion for a new trial.
    The action was brought to recover the sum of $90, the amount of a check drawn by Shufeldt Brothers & Co., in favor of the plaintiff, upon the defendant, and dated the 14th of July, 1855. The plaintiff also claimed to recover by virtue of an assignment made to him, by Shufeldt Brothers & Co., on the 13th of July, 1855, of all the moneys then due to them from the bank.
    The answer denied generally the allegations of the complaint, and set up, as a separate defence, that on the 12th of July, 1855, there had been a final settlement of all accounts between the firm of Shufeldt Brothers & Co. and the bank; that upon this accounting the sum of $10.21, and no more, was found to be due to the firm, which was then paid to them, and accepted by them, in full satisfaction and discharge of all their claims; and that, at no time after the 12th of July, had the bank in its possession any money or funds belonging to Shufeldt Brothers & Co.
    Upon the issue raised by the pleadings, the cause was tried at a Trial Term in December, 1855, and the following were the proceedings on the trial.
    The plaintiff called as a witness George A. Shufeldt, Jr., who was sworn, and testified: That he was a member of the firm of Shufeldt Brothers. That in July last that firm kept an account with the Bank of the Commonwealth. That account was balanced on the 11th or 12th of July. I think the 12th.
    
      A young man came on that day from the bank between two and three o’clock in the afternoon, handed me the pass-book and some vouchers, and said the bank wished to close the account. I told him that I did not transact the business of the firm, and knew nothing about it. There were six checks returned at the time with the pass-book. I did not examine the account or vouchers while the young man was there. About an hour after I found that two of these six checks, each for $45.31 were dated the 25th day of July, and that they had been paid before they were due. The next day I sent these two checks to the bank. Mr. Winne took them for me. He returned without the money. I then executed an assignment to Godin.
    The following is a copy of the account, as it appears in the passbook, from the 7th of July, 1855, inclusive;
    Shufeldt Bros. & Co.
    
      
    
    On the 14th Mr. Winne went again with a check, drawn by Shufeldt Brothers, for the balance.
    Being cross-examined, the witness says:
    I signed the check for $10.21 now shown to me—
    No. New York, July 12, 1855.
    Bank of the Commonwealth,
    Pay to or Bearer,
    Ten 21-100 Dollars.
    $10.^r Shufeldt Bros. & Co.
    (Endorsed)
    Geo. A. Shufeldt, Jr.
    
      —when the young man from the hank handed it to me, and he gave me the money for it.
    Plaintiff then called Richard Winne, who was sworn, and-testified:
    T took, at the request of Mr. Shufeldt, these two checks for $45.31 each to the Bank of the Commonwealth on the 13th or 14th:
    
      
    
    Endorsed.
    Charles Broome.
    Pay to the order of H. Meigs, Esq., cashier, or order.
    James T. Hull.
    The writing across the checks, stating that they were cut by error, was not on them when I took them to the bank. I presented these checks to the paying teller of the bank, and asked for the money. He said they had been paid. I then called his attention to their dates. He referred me to the cashier. The cashier took them, and went to the bookkeeper and looked at the books, came back and stated that they had been collected through the Metropolitan Bank. The clerk came back and said the Metropolitan Bank would not pay them. The cashier of the Bank of the Commonwealth then refused to pay the checks, or either of them, to me when he returned; then the words “out by error,” were written across the face of the checks; they were not written there when I gave them to the paying teller. I then told the cashier that Shufeldt Brothers would sue the bank for the amount of the checks.
    The next day I presented the check drawn by Shufeldt Brothers & Oo. to Godin, at the bank, and they told me that Shufeldt Brothers had no account there. I made this last demand of the bank at the request of Mr. Godin, the plaintiff.
    The following is a copy of the check:—
    New York, July 14th, 1855.
    Bank of the Commonwealth.
    Pay to John T. Godin, or order, $90—Ninety Dollars.
    Shufeldt Brothers & Co.
    Endorsed " John T. Godin.
    Collect, ' Geo. A. Shufeldt, Jr.
    Plaintiff next offered the assignment in evidence, the execution and delivery of which had been before proved.
    “ Eor good and valuable considerations we hereby assign, transfer, and set over to John T. Godin all claims and demands which we now have or hold against the Bank of the Commonwealth, in the city of New York, and particularly the sum which we deposited with, and now remaining in said bank.
    “New York, July 18th, 1855. Shufeldt Bros. & Co.”
    Plaintiff here rested the case.
    Whereupon defendants’ counsel moved for a nonsuit on the ground—
    Eirst. It appeared that the account of plaintiff with the bank was closed by mutual arrangement before the check was drawn to the order of the plaintiff.
    2d. That the plaintiff had settled the account by receiving the balance of $10.21.
    3d. That the two checks for $45.31 each had been rightfully paid.
    Defendants’ motion was overruled, and his counsel thereupon excepted.
    Defendants’ counsel then called
    
      James E. Tompkins, who, being sworn, said: That he was the porter .of the bank; that on the 12th day of July the bookkeeper handed him the pass-book of Shufeldt Brothers with the bank, and some cancelled checks, also the check for $10.21 already produced in evidence, and that sum in money, and instructed him to take them to Shufeldt Brothers and state that the bank wished to close the account: that he did this; went to the office of Shufeldt Brothers and found one of the firm, to whom he delivered the pass-book and vouchers, and requested him to sign the check for $10.21, and that witness would hand him the money, as the bank wished to close the account. That thereupon Mr. Shufeldt took the pass-book and vouchers, and signed the check for $10.21, and witness paid him that sum in money. That witness knew the place, and had been there frequently before to inform the firm that their account was overdrawn.
    The defendant here rested.
    The testimony being closed, the court charged the jury that there was but one question of fact for them to determine, and that was, whether the assignment by Shufeldt Bros. & Go. to the plaintiff was a bona fide assignment, or merely colorable ? and as to that fact, the defendant had introduced no testimony to impeach the assignment, that if they should find that the same was a mere sham, and only colorable, they should find a verdict for the defendant, otherwise for the plaintiff.
    To which charge the counsel for the defendants excepted.
    Whereupon the jury rendered a verdict for the plaintiff for principal, $90.62, and interest, $2.59: the whole amounting to $93.21.
    A motion for a new trial upon the case and exceptions was denied at a Special Term in March, 1855.
    
      H. Q. Be Forrest, for the defendants, appellants.
    The judgment ought to be reversed, and the complaint be dismissed, or a new trial ordered.
    We insist that a bank has a legal right to pay post-dated checks whenever they are presented, and to charge them at once to the account of their drawers. The body of the check requires payment on presentation, and its actual delivery and negotiation by the drawer repels any inference to he derived from its date. The true date of a check is presumptively that of its delivery, and its actual date is wholly immaterial, except when referred to in the body of the instrument, and conceding that a bank may decline to pay a post-dated check before the day of its date, it is not bound to do so. It may elect to pay the check when presented, and the payment so made is, therefore, valid.
    Again, even if the checks were improperly paid by the bank, the acceptance by the plaintiffs of the balance standing in their passbook, and the agreement to close their account, was a ratification of the payment and a conclusive waiver of any adverse right. In any event, the defendants had a right to go to the jury upon other questions of fact than the mere validity of the assignment, and especially whether the Shufeldts had not ratified the payment of the post-dated checks by acquiescing in the account as stated in the pass-book.
    
      J. 0. Dimmick, for the plaintiff, respondent,
    Insisted that there was no other question in the cause than that of the right of the bank to pay the post-dated checks before their maturity; that the payment was wrongfully made, it seemed to him, was a self-evident truth. The only object for post-dating a. check must be to postpone its presentation and payment, and that' such is the intention, and, therefore, the direction of the drawer," must be known both to the receiver of the check and the bank, upon which it is drawn. He has, therefore, no right to present,: and the bank no right to pay. The counsel demanded that the! judgment should be affirmed, with costs.
   By the Court. Slossow, J.

Whether the plaintiff could have maintained this action upon the non-refusal of the bank to pay the $90 check is a question it is unnecessary to decide, since of his right to maintain the action, as assignee, we have no doubt, and it was only upon this ground that be recovered.

The only questions to be considered, therefore, are

1st. Was the bank justified in paying the post-dated checks before their maturity ?

2d. Ought any other question of fact to have been submitted to the jury than that which was submitted?

Though the date of a note, bill, or check, is not material to its validity, it is so in respect to its period of payment. It may be ante-dated or post-dated, without affecting its legal character, as an obligation, but the date determines the time when it becomes payable. (Parsons v. North, 13 East. 516; Brewster v. McCardle, 8 Wend. 478.)

The checks in question, which were paid by the defendants on the 10th of July, were not payable until presentation on the day of their date, 25th July, and the defendants, therefore, paid them in their own wrong. They had, at the time, funds of the drawers, Messrs. Shufeldt, in hand exceeding the amount of the two checks by $10.21. This excess was paid to the drawer, two days after the payment of the checks, on what the defendants intended to be a closing of the drawer’s account with them; and their defence to this action is, that they had accounted with the drawers, and paid them this balance due them. The evidence, however, falls far short of showing such an accounting, as that the maker of the checks acquiesced in the account made up by the bank, in which these two checks were charged.

This account is contained in the pass-book, in which these checks are charged as “ cash” merely, with no designation of date other than that of the payment, (10th July.) There was nothing, therefore, on the face of the account, to apprise Messrs. Shufeldt that those were the two checks in question. He appears to have signed the check for the balance ($10.21) as soon as it was handed to him, and without examining the pass-book or returned checks. About an hour afterwards, in examining the returned checks, he discovered the mistake, and that the bank had charged these two checks as cash paid 10th July, and the next morning he returned the checks to the bank for payment, which was refused. The bank, however, wrote over the face of the checks, “cut by error.” Checks are cut, at a bank, when paid, and the account closed or balanced; writing these words was probably intended by the defendants to protect themselves against any conclusion against themselves in their claim on the Metropolitan Bank, from which they had received them; it was equally an admission in favor of Messrs. Shufeldt on the question of payment. If, on this evidence, the Judge who tried the case had left it to the jury to say whether the Messrs. Shufeldt had acquiesced in the bank account as an account liquidated and adjusted, and had ratified the payment of the two checks on the 10th of July, and they had found that question in the affirmative, the verdict could not have been sustained. He was right, therefore, in withholding the question from them.

It follows, then, that the amount of the two checks was never, in contemplation of law, withdrawn from the bank; and when the check in suit for that amount was subsequently made, on 14th July, in favor of the plaintiff, and the drawer’s claim on the fund in bank formally assigned to him, the defendants became bound, on presentation of it, to pay it, and having refused to do so, are 'liable in this action.

.Judgment at Special Term, denying motion for new trial, affirmed.  