Smith v. . Miller
New York Court of Appeals
Appeal from a judgment of the General Term of the Superior Court of the city of New York, affirming a judgment for the plaintiff at the circuit. This action was brotight to recover the unpaid balance of the price of a bill of goods sold by the plaintiffs to the defendants. The defendants set up a defence of payment by a draft for $2,968.69, drawn by them on James K. Place & Co., of New York, to the order of the plaintiffs.
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Appeal from a judgment of the General Term of the Superior Court of the city of New York, affirming a judgment for the plaintiff at the circuit. This action was brotight to recover the unpaid balance of the price of a bill of goods sold by the plaintiffs to the defendants. The defendants set up a defence of payment by a draft for $2,968.69, drawn by them on James K. Place & Co., of New York, to the order of the plaintiffs. The draft was received by the plaintiffs by mail on the morning of November 19th and was immediately indorsed by the plaintiffs, and at about half-past one in the afternoon…
1Opinion of the CourtAllen, J.
The bill of the defendants on J. K. Place & Co., was not received by the plaintiffs in absolute payment of their claim, and the debt due from the defendants was not discharged by the delivery of the draft. It was received in payment sub modo, and could become operative as a payment in fact only when paid by the drawees. (Hall v. Barber, 13 N. Y., 566; Bradford v. Fox, 38 id., 289; Story on Bills, § 419.)
The check of J. K. Place & Co., the drawees of the bill to the order of the plaintiffs, in the absence of an express agreement that the same should, be received as payment, was not a payment…
2Cases cited1 opinion
- Turner v. Bank of Fox LakeNew York Court of Appeals · 1867
3Cited by55 opinions
- First National Bank v. Fourth National BankNew York Court of Appeals · 1879
- First Nat. Bank of Jersey City v. . LeachNew York Court of Appeals · 1873
- People Ex Rel. Port Chester Savings Bank v. CromwellNew York Court of Appeals · 1886
- Rhodus v. GeatleySupreme Court of Missouri · 1941
- Carroll v. . SweetNew York Court of Appeals · 1891
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