Opinion
Opinion filed October 6, 1931.
Bills and Notes — Fraud — Knowingly Issuing Check on Institution in Which Maker Has Insufficient Funds To Meet It — G.L. 6888, as Amended by Acts 1925, No. 130 — Knowledge of Payee — Elements of Statutory Right of Action — Execution — Motion for Certified Execution in Supreme Court — Burden of Proof — "Wilful and Malicious Act or Neglect" — Insufficiency of Record To Establish Wilful and Malicious Act or Neglect.
1. G.L. 6888, as amended by Acts 1925, No. 130, making liable in action of tort person issuing check, knowing at time of issue that he has not sufficient funds or credit at institution on which it is drawn for its payment in full on presentation, held to apply to presently dated check, although payee was informed at time of its delivery that there were no funds to meet check.
2. Neither fraud nor deceit are essential elements of right of action of tort under G.L. 6888, as amended by Acts 1925, No. 30, against person issuing check, knowing at time of issue that he has not sufficient funds or credit at institution on which it is drawn for its payment in full on presentation.
3. G.L. 6888, as amended by Acts 1925, No. 130, providing action of tort against maker of check who at time of its issue knew that he had insufficient funds or credit at institution on which it is drawn for its payment in full on presentation, created new remedy for benefit of holder of presently dated check, and was designed to provide indemnity to him by means of body action against maker of unpaid check falling within its provisions, hence no injury or damage beyond non-payment need be shown.
4. In action of tort under G.L. 6888, as amended by Acts 1925, No. 130, against maker of presently dated check on institution in which at time of issue he had insufficient funds or credit for its payment in full on presentation, it is maker's knowledge of lack of funds or credit, and not that of payee or holder, which is material and essential element of wrong for which remedy is provided.
5. In action of tort, where judgment below was for defendant, upon reversal of lower court and entry of final judgment for plaintiff in Supreme Court, held that upon rendition of such latter judgment plaintiff might properly move for certified execution in Supreme Court.
6. Burden is on plaintiff moving for certified execution under G.L. 2384 to prove that injury arose from "wilful and malicious act or neglect" of defendant.
7. Term "wilful and malicious act or neglect," as used in G.L. 2384, signifies wrongful act done intentionally without just cause or excuse.
8. Record held insufficient to sustain burden of proof on plaintiffs to establish that injury arose from "wilful and malicious act or neglect" of defendant, required to justify issuance of certified execution.
ACTION OF TORT under G.L. 6888, as amended by Acts 1925, No. 130, against maker of check for non-payment of check drawn and delivered without funds in bank to pay it in full on presentation. Plea, general issue. Trial by court at the December Term, 1930, Bennington County, Sherburne, J., presiding. Judgment for the defendant. The plaintiff excepted. The opinion states the case. Reversed, and judgment for plaintiff. Motion for certified execution denied.
Edward H. Holden for the plaintiff.
Cebra Q. Graves for the defendant.
Present: POWERS, C.J., SLACK, MOULTON, and THOMPSON, JJ., and GRAHAM, Supr. J.
On May 8, 1930, the defendant tendered to the plaintiffs a check signed by him, drawn upon the First National Bank of Bennington, dated May 10, 1930, in payment for certain merchandise. The plaintiffs refused to accept it because it was postdated. Whereupon the defendant changed the date to May 8, and informed the plaintiffs that he had no funds in the bank to meet the check. The plaintiffs then accepted it. The check went to protest on May 10, and the plaintiffs have brought this action under G.L. 6888, as amended by No. 130, Acts of 1925, providing in part that, "Any person who makes, draws, utters or delivers a check, draft or order for payment of money upon any bank or other depository, knowing at the time of such making, drawing, uttering or delivery, that the maker or drawer has not sufficient funds in or credit with such bank or other depository for the payment of such check, draft or order in full upon presentation, and which is not paid in full upon presentation, shall be liable in an action of tort, on the statute, to the person injured thereby, and for want of property, the body of the person so making, drawing, uttering or delivering such check, draft or order may be attached."
The trial court rendered judgment for the defendant and the plaintiffs excepted. The question is whether an action in tort, under the statute above quoted can be maintained where the payee of a presently dated check is informed at the time of its delivery to him, and before he accepts it, that there are no funds available for its payment.
We hold that the statute applies, and that the action can be maintained under such circumstances. The action is not one at common law for fraud and deceit, and neither fraud nor deceit are essential elements of the right of action. The statute has created a new remedy for the benefit of the payee or holder of a presently dated check and was designed to provide indemnity to him by means of a body action against the maker of an unpaid check falling within its provisions. No injury or damage beyond the non-payment need be shown. Lovell v. Eaton, 99 Vt. 259, 261, 133 A. 744. Consequently, since deceit on the part of the maker is immaterial, knowledge of the lack of funds or credit, on the part of the payee or holder is likewise immaterial. It is the knowledge of the maker and not that of the payee or holder that is the essential element of the wrong for which the remedy is provided. Lovell v. Eaton, 99 Vt. 255-257, 133 A. 742.
The case is to be distinguished from one involving a postdated check. Such an instrument was held in Lovell v. Eaton (last above cited) not to be within the meaning of the statute. It is, in effect, a bank draft payable on demand on or after the day of its date. LaCroix et Frere v. Eaton, 99 Vt. 262, 263, 133 A. 745.
The finding of facts states that if the statute applies, the plaintiffs are entitled to recover the amount of the check and protest fees with interest, making a total of $170.42. The judgment order was dated January 26, 1931. Therefore we are enabled to make a final disposition of the case, without the necessity of a remand.
The plaintiffs moved for a certified execution under the provisions of G.L. 2384. Since the judgment of the trial court in favor of the defendant has been reversed and final judgment is entered for the plaintiffs in this Court, this is the first opportunity for making the motion and it is properly presented at this time. Darling v. Woodward, 54 Vt. 101, 104; Oben v. Adams, 89 Vt. 158, 166, 94 A. 506; Smith v. Ladrie, 98 Vt. 429, 432, 129 A. 302.
The burden of proving that the injury arose from the wilful and malicious act or neglect of the defendant is upon the plaintiffs as the moving parties. See Colston v. Bean, 78 Vt. 283, 285, 62 A. 1015. All the parties treat the finding of facts as containing everything material for the determination of this question, and consequently, so do we.
The basis for an action under G.L. 6888, as amended by No. 130, Acts 1925, (I), is not alone the making, drawing, uttering or delivering of a check, draft, or order for the payment of money upon any bank or depository with knowledge that at that time there are insufficient funds or credits with the bank or other depository for its payment in full upon presentation, but also the fact that it is not so paid. As we have seen the action is purely statutory in its nature and is not predicated upon any common law conception of fraud or deceit.
The term "wilful and malicious act or neglect" signifies a wrongful act done intentionally without just cause or excuse. Wellman v. Mead, 93 Vt. 322, 339, 340, 107 A. 396. Nothing in the findings gives us any information as to what happened or was done or omitted to be done by the defendant between the time the check was delivered and the time it was presented and payment refused. No wilful or malicious act or neglect on the part of the defendant resulting in the failure of payment is shown. For aught that appears the failure may have been due to causes entirely beyond his control. Therefore the plaintiffs have not sustained the burden and the motion must be denied.
Judgment reversed and judgment for the plaintiffs to recover the sum of $170.42 with interest thereon since January 26, 1931, and their costs. Motion for certified execution denied.