N. Holmes & Sons v. Briggs & Drum

Citations

• 131 Pa. 233
• 18 A. 928
• 1890 Pa. LEXIS 1103

Syllabus

<p>[To be reported.]</p> <p>1. In the absence of any special agreement to the contrary, the mere acceptance by a creditor from his debtor of the check of a third person to the creditor’s order, for a pre-existing indebtedness, is not an absolute but a conditional payment, and the burden of proving such special agreement is on the debtor.</p> <p>2. The facts that the creditor failed to give the debtor prompt notice of the dishonor of such a check, retained it in his possession, and collected on it a dividend out of the assigned estate of the drawer, do not raise any presumption that it was taken as absolute payment, but are exclusively for the consideration of the jury : Briggs v. Holmes, 118 Pa. 283.</p> <p>3. When the debtor is not a parly to such check, either as drawer, payee or indorser, he is not strictly entitled to notice of dishonor according to the law merchant ; and delay in giving sucli notice is not of itself a defence against his original liability, unless it be shown that he has actually sustained loss or damage in consequence thereof.</p> <p>4. When the check of a third person, accepted as conditional payment of a pre-existing debt, has been dishonored, the creditor is not bound to return or tender the elieek to the debtor before bringing suit for the collection of the debt, the rule which governs in cases of rescission of contracts not being applicable.</p>