#### S. Shuster Smith and others, plaintiffs and respondents, *vs.*Abraham D. A. Miller and others, defendants and appellants.

1. The acceptance of a negotiable instrument, for a debt, is not a payment of it, without a separate agreement to that effect distinctly proved. Hence a debt due, for merchandise sold, is not paid by the mere remittance of a draft, unless it is agreed to be received as payment.

2. The doctrine established in *Johnson*v. *Banh of North America,*(5 *Bob.*664,) that if a check of the drawees of a draft, given in exchange for the draft, be not paid on presentation, the next day after it is given, the liability of the drawer qf the draft still remains) on due notice to him of such demand and non-payment, reasserted.

(Before Robertson, Ch. J., and Garvin and Barbour, JJ.)

Heard —, 1868;

decided October, 1868.

Motion by the defendant Miller for a re-argument of this case, on the ground of a misapprehension by the court, of the facts and decision in the case of *Turner*v. *The Bank of Fox Lake,*in the Court of Appeals, (3 *Keyes,*425,) upon the-authority of which case this court had refused to interfere with a verdict and judgment therein, in favor of the plaintiffs. The facts and decision appear in the previous report of the case, 6 *Rob.*157.

*J. H. Choate,*for the appellants.

*E. T. Gerry,*for the respondents.

Robertson, Ch. J.

One distinction between this case and the cases of *Johnson*v. *Bank of North America,*(5 *Rob.*554,) in this court, and *Turner*v. *Bank of Fox Lake,*(3 *Keyes,*425,) is rather in favor of the plaintiffs in this case. This action is for the price of merchandise sold, and not on any draft. The defense set up was a remittance of a draft by the defendants in payment of the “ balance ” due to the plaintiff upon such sale, and the payment and satisfaction *414of such draft by the drawees, its surrender, and the acknowledgment by the plaintiffs to the defendants that it had been paid. The various authorities referred to in the opinion of the court in the first case, *(Johnson*v. *Bank of North*America, 5 *Rob.*554, 590,) as well as in the second case, fully show that the acceptance of a negotiable instrument for a debt is not a payment of it, without a separate agreement to that effect, distinctly proved. The debt due for the merchandise sold in this case was not, therefore, paid by the mere remittance of the draft in question, unless it was agreed to be received as payment. That is neither alleged in the answer, nor was there any evidence in the case of any such separate agreement. For I do not regard.the request contained in the letter of’the plaintiffs, dated Eovember 16, 1867, to the defendants, to remit “ the balance on their lot,” the announcement in the answer of the defendants-, two days afterwards, (Eovember IE,) that they inclosed their draft for a certain sum, ($2968.69,) “being balance due them on last invoice and the reply, dated next day, (Eovember 19,) acknowledging the receipt of such draft, and stating that it had been paid, as making out such an agreement. Consequently it was not by the mere receipt of the draft that it became a payment and satisfaction of the original claim, and the plaintiffs were to be confined to a right of action upon it. If its receipt operated in any way to discharge the defendants from their original cause of action, it must have been in consequence of the plaintiffs’ subsequent mode of dealing with such draft. If not a payment, such draft became mere collateral security for the original debt; and the plaintiffs could only become liable therefor by a violation of some undertaking on their part to collect the draft, implied from the mere fact of taking it as such security. It was also a sight draft, and it does not appear when it was received by the plaintiffs; but if not received until the 19th, a presentment on the 20th might have been in time; for the receipt of the check on the former draft, (if not an absolute payment,) and its pre*415sentation on the latter day, might have operated as a good demand on the last day of payment" of the draft. For if a check is to be considered as a mere means of obtaining the money, as was held by Clerke, J., in *Bradford*v. *Fox,*(39 *Barb.*205,) and according to the ordinary rule sfe between drawer and payee, the former is not discharged if it be presented next day after it is given; such an interpretation might have been put on the conduct of the plaintiffs.

There was, however, a piece of evidence in the case, which might have warranted the submission to the jury of the question whether the check of the drawees was agreed to be received in payment of the draft or *not;*and that • was their letter of November 19, acknowledging that the latter had “been paid;” but the defendants did not ask to .have it submitted, and a-re-argument is not asked on that point.

' But assuming that the plaintiffs were bound to present the draft in question on November 19, and that it being presented on that day, and a check received for it, such receipt made the latter a payment thereof, either absolute or conditional, I think this case clearly within the'first cited cases, *(Johnson*v. *Bank of North*America, and *Turner*v. *Bank of Fox Lake, ubi sup.,)*to wit, that if a check of the drawees of a draft received in exchange for it, be not paid on presentation to the person on whom it was drawn, the next day after it is given, the liability of the drawer still remains, on due notice of such demand and non-payment to him.

I am aware of the strong argument which may be built upon the assumption that it is the duty of a holder of a draft, in order to retain the liability of the drawer, to insist on its payment *in money,*when presented for payment, and in case of a refusal to give that, to notify such drawer of such demand and non-payment *in money;*and I am also aware of the other inference that may be naturally drawn from such assumption, that the surrender of the draft and an acceptance of the check of the drawee therefor, must *416"be construed to be a payment in law, because the holder thereby shows an intention not to insist on absolute payment in cash, but to take the chances of the goodness of the check, and look for payment to the drawee’s responsibility on it alone.

The case of *Kobbe*v. *Clark,*(4 *Seld. Notes,*11,) cited as authority for the freedom of the defendants from liability, evidently did not" proceed upon any such doctrine as" that the holder of a draft was bound, *in all eases,*to demand the payment of it *in money,*when, presented for that purpose, and that if he gave time for it's payment until next day, by taking a check therefor, and waiting until that time to present it, he thereby made such check his own, and its receipt a payment of the draft. For the learned justice of this court before whom that case was tried, in his charge to the jury, made the exemption from liability of the defendant to depend upon two contingencies :

*First.*Whether the drawers of the • draft in question would have paid cash for it if their check had been refused; and •

*Second.*Whether the check would have been paid if presented the day it was given; one of which questions, of course, must have be.en found by the jury in favor of the defendant, to warrant the verdict.

The first question so submitted evidently concedes that the taking of a check is justifiable, and the liability of the drawers is retained, although the drawers would not pay the money upon demand; and the second assumes the effect of taking the check, in discharging the drawers, to have depended on the diligence or want of it exhibited in attempting to collect it. Both imply that the mere taking of the check and surrender of the draft did not in themselves discharge the drawers.

That case, however, evidently impliedly acknowledges that if neither of such contingencies (on which the jury were allowed to speculate) would have happened, the presentation of the check for payment on the day after it was *417given, was in time, and retained the liability of the drawers of the draft, and that very doctrine is admitted in this case. The case of *Caldwell*v. *Sanderson,*however, cited on the argument from 8 *Bank. Mag. N. S.*962, (which can hardly be considered as a professional work,) meets the point fully, for in that case it was contended that the taking of the check and surrender of the draft was a payment of the latter, and the court so held. It is not so remarkable that the Court of Appe'als should have overlooked the first case of *Kobbe*v. *Clark,*as it was not reported in any regular book of reports, or if they had it in view, should have intended to overrule a case, which left the liability of a drawer to depend on the mere speculations of a jury on probabilities as to what a drawee would be likely to have done if the check had been refused, or whether the latter was likely to have been paid if presented oh the day it was drawn, and rather made such liability to depend upon the presentment of the check, its refusal, and notice of non-payment of the draft within the time necessary to have notified the drawer, if no check had been taken, and payment of the draft had been refused. And so I understand the court to have done in the recent case, before cited, *(Turner*v. *Bank of Fox*Lake, *ubi supra.)*

It is not necessary to comment on those cases in which a collecting agent has been made liable, for want of due diligence, in not presenting a check received by him for a draft placed in his hands for collection; such as *Nunnemaker*v. *Lanier,*(48 *Barb.*234;) *Commercial Bank of Pennsylvania*v. *Union Bank of New York, (11 N. Y. Rep.*[1 *Kern.)*214.) They depend upon an entirely different relation of the parties, and different duties, and are wholly inapplicable.

The only report of the case of *Turner*v. *Bank of Fox Lake*published has several typographical errors, consisting principally of the substitution of the words “ drawers” for “ drawees,” in nearly every place where the latter should have occurred, and it therefore may have misled the coun*418sel in this case. It clearly holds that the taking of a check for a draft was only “ equivalent to the taking, by a creditor from his debtor, of an obligation of a third person,” and that the presentment of such check next day, through the New York clearing-house, was in time to discharge any obligation assumed by the holder in regard to it, so as to leave the drawer of the draft, still liable. Apparently, the only reason given in such case for holding a presentment of the check the next day to be in time, was that it was according to the regular course of business for presenting checks on banks of New York. That has already been held to be the legal time in all cases when the check is drawn upon a drawee in a place where both parties reside, *(Mohawk Bank*v. *Broderick,*13 *Wend.*133,) and to this may be added the consideration that notice of non-payment of the draft on demand of it, is in time if given on that day. Of course we are bound by the decision in that case, even if we saw good reason for departing from- that of *Johnson*v. *Bank of North America, (ubi supra,)*and as the inapplicability of the former is the sole reason for asking a re-argument, it must be denied, since two of the judges of this court so read that case, in their opinions, even supposing the other judges who joined with them in their decisions in both cases to have misunderstood it. One of the justices who dissented in *Johnson*v. *Bank of North America,*(Monell, J.,) concurred in the former decision of this case, as I understand, so that more than a majority of the court have joined in the same -view of *Turner*v. *Bank of Fox Lake,*and it would be hopeless to expect to do away with that view.

I have gone, perhaps, more fully into the merits of the case than was necessary to decide the motion, which was founded upon a mere supposed misconstruction by the court of a recent decision, and does not come within the principles laid down in *Newell*v. *Wheeler,*(4 *Rob.*190,) and *Rector &c. of Trinity Church*v. *Higgins, (Id.*372,) but I deemed it proper to reassert the doctrine established in *419
      *Johnson*v. *Bank of North*America, on the strength of the case in the Court of Appeals.

The motion must be denied, with $10 costs.

G-arvin, J., concurred.

Barbour, J.

Without expressing .an opinion upon any of the questions presented upon the argument of the appeal, or decided by the court, and now discussed in the opinion of the learned chief justice on this motion, I concur with him in thinking that the motion for a re-argument ought to be denied. This conclusion, however, is based solely upon the ground that the case appears to have been fully and ably argued at general term, and no sufficient reason is shown for a reconsideration here of any important questions involved in the controversy.

Motion denied,