J. Webster Jones, Philadelphia, for appellant.
Paul Brandeis, Goff & Rubin, Philadelphia for appellee.
Before Rhodes, P. J., and Hirt, Dithrich, Ross, Arnold and Fine, JJ.
[ 166 Pa. Super. Page 117]
This is an assumpsit action to recover the balance of the purchase price of an automobile sold by the plaintiff to the defendant on or about December 20, 1944. The purchase price was $1150.00 and at the time of the sale the defendant paid $900.00 and gave 'a check dated January 2, 1945, drawn on the Kensington National Bank, and payable April 2, 1945, in the sum of $250.00, covering the balance due'. This action was brought to recover the 'balance due', $250.00, and the case was tried by the court without a jury. The trial judge found for the plaintiff, exceptions to his finding were dismissed by the court en banc, and the defendant took this appeal.
It is admitted that the check was never presented for payment because the plaintiff 'assumed it to be a note'. Section 186 of the Negotiable Instruments Law 1901, P.L. 194, 56 P.S. § 474, provides: 'A check must be
[ 166 Pa. Super. Page 118]
presented for payment within a reasonable time after its issue, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.' Defendant's first contention is that the check was payment of the balance due because it was not presented for payment 'within a reasonable time' and in support of his contention cites Wendkos v. Scranton Life Insurance Co., 340 Pa. 550, 17 A.2d 895. The Wendkos case was a suit by the beneficiary in a life insurance policy against the company which issued it, denial being made that the policy was in force, owing to failure to pay the premium when it became due. The question involved was whether a check sent in payment of the premium was presented within a reasonable time after its receipt by the payee. The Supreme Court held that it had not been and that, therefore, in law the check was payment.
In that case the loss of the value of the life insurance policy would have resulted from the failure of the payee to present the check within a reasonable time. In this case the defendant suffered no loss by the failure of the plaintiff to present the check for payment and he does not contend otherwise. Consequently, neither the Wendkos case nor Section 186 of the Act supports defendant's contention, and it is without merit.
The defendant's second contention involves the certificate of title to the automobile. A witness for the plaintiff testified as follows:
'Q. What is your connection with the Scott-Smith Cadillac ...