Citizens' Bank v. Kretschmar

Citations

• 91 Miss. 608
• 44 So. 930

Syllabus

<p>1. Payment. Chech. Presumption. Dishonor. Effect. Evidence.</p> <p>The delivery of a check hy a debtor to his creditor is presumed not to have been accepted as payment, in the absence of evidence of an agreement that it should be so received; and, where a check, given to pay a debt, is not honored on due presentation the original indebtedness continues to exist, and recovery may ' be had thereon without resorting to the debtor’s liability on the check.</p> <p>2. Same. Acceptance as payment. Fraud.</p> <p>Although a creditor accept his debtor’s check in payment, the debt will not be extinguished and may be enforced, if the check he drawn on a bank in which the debtor had neither funds nor credit, there being in such case no consideration for the creditor’s agreement to so accept the check.</p> <p>3. Same. Insolvency. Receiver. Set-off.</p> <p>Where one bank received a draft from another in settlement of a debt, forwarded it in usual course for collection and, before notice of its dishonor, gave its due° bill for later transactions to the drawer bank, it is entitled upon dishonor of the draft and the insolvency of the drawer bank, in a controversy with the receiver of the insolvent, to have the one debt set off against the other.</p> <p>4. Same. Counterclaims.</p> <p>The courts liberally allow counterclaims in cases of insolvency to the end that the true balance only may be required to be paid.</p>