98 Mass. 288 | Mass. | 1867
The plaintiffs in this action seek to recover the amount of a bill of exchange for $3300. The material facts appearing by the report of the judge before whom (a trial by jury having been waived) the case was tried in the superior court are as follows:
The bill was drawn by John P. Hill at St. Louis on the 8th of March 1865 upon the defendants at Boston, “ against twelve bales of cotton,” (as was stated in a memorandum at the foot of the bill,) and payable in thirty days from date to the order of Pitman & Co., and on the day of its date was discounted by the plaintiffs and indorsed to them by the payees. On the same day Hill wrote to the defendants informing them of the drawing of the bill and the forwarding of the cotton. On the 14th of March the defendants wrote in reply, saying, “ Your shipment of twelve bales of cotton will receive due attention. Bill of lading not at hand. Your draft for $3300 is excessive, particularly as we shall have no margin on previous shipments as the market now looks. We will honor the same, but shall expect you, on receipt of this, to make us shipment of cotton to cover the margin.” On the 15th of March the bill was presented by the plaintiffs to the defendants and noted for non-acceptance, and the defendants wrote to Hill that this had been done because they had received no bill of lading, and added, “ When bill of lading is received, will accept draft.” The bill of lading was in terms for the delivery of the twelve bales to the defendants or order, and was sent on the 12th and received by them on the 17th of March. The defendants, on the same day, wrote to Hill and to Pitman & Co. that they should not honor the bill unless additional cotton should be sent them to meet unaccepted
The judge found, as matter of fact, that the plaintiffs, in discounting the bill, relied on the memorandum thereon, as well as on the names of the parties thereto; and held, as matter of law, that the defendants by their letter of March 15, whether taken by itself or in connection with the whole correspondence, absolutely promised to accept the bill, when the bill of lading should be received; and that upon the receipt of the bill of lading the defendants became liable as acceptors of the bill; and gave judgment for the plaintiffs for the amount thereof, with interest. The defendants alleged exceptions.
It has long been well settled, though it has often been regretted that it should not originally have been held otherwise, that, in the absence of any statute prescribing a different rule, the acceptance, of a bill of exchange need not be by writing upon the bill itself, but that a separate written or even oral promise by the drawee to the holder binds the drawee as an acceptance which he is estopped to deny. Wilkinson v. Lutwidge, 1 Stra. 648. Lumley v. Palmer, Cas. temp. Hardw. 74; S. C. 2 Stra. 1000. Ward v. Allen, 2 Met. 53. Wells v. Brigham, 6 Cush. 6. It is equally well settled that an acceptance, otherwise sufficient, is not the less so by reason of a previous refusal to accept and protest for non-acceptance. Grant v. Shaw, 16 Mass. 344. And an acceptance may be conditional, and become absolute when the condition is performed. Coolidge v. Payson, 2 Wheat. 72. United States v. Bank of the Metropolis, 15 Pet. 394, 395. Grant v. Shaw, 16 Mass. 344.
Where drawees were sought to be charged as acceptors of a bill of exchange by reason of a letter from them to the plaintiffs, to whom the bill had been previously indorsed, Lord Mansfield said, “ It has been truly said as a general rule that the mere answer of a merchant to the drawer of a bill, saying he will duly honor it, is no acceptance, unless accompanied with circumstances which may induce a third person to take the bill by indorsement.” Pierson v. Dunlop, Cowp. 573, 574. And in an action against the drawees as acceptors on a- promise to accept in a letter written to the drawer before the drawing of the bill sued on, he said, “ There is no doubt but an agreement to accept may amount to an acceptance, and it may be couched in such words as to put a third person in a better condition than the drawer. If a man, to give credit to another, makes an absolute promise to accept his bill, the drawer or any other person may show such promise upon the exchange, to get credit, and a third person, who should advance his money upon it, would have nothing to do with the equitable circumstances which might arise between the drawer and acceptor.” Mason v. Hunt, 1 Doug. 299. See also Pillans v. Van Mierop, 3 Burr. 1667, 1669, 1672, 1673.
These cases were formerly supposed to have settled the rule in England to be that a promise to accept even a bill not yet drawn would sustain an action by one who afterwards took the bill on the credit of the promise. Beawes Lex Merc. Bills of Exchange, pl. 112. Kyd on Bills (1st Am. ed.) 72, 74. Byles on Bills (6th ed.) 145. But from the time of Lord Kenyon the tendency of the English decisions has been to hold any promise to accept a non-existing bill of exchange insufficient to support an action by an indorsee of the bill. Johnson v. Codings, 1 East, 98. Ex parte Bolton, 2 Deacon, 537 ; S. C. 3 Mont. & Ayrt. 367 Opinions of English counsel in 2 Story, 219, 220. Bank of Ireland v. Archer, 11 M. & W. 383.
In Coolidge v. Payson, 2 Wheat. 66, Chief Justice Marshall, who delivered the unanimous opinion of the supreme court of the United States, affirming the judgment of Mr. Justice Story in 2 Gallison, 238, after carefully examining the opinions of Lord Mansfield, and alluding to a distinction suggested between bills drawn before and after the date of the promise, said, “ The court can perceive no substantial reason for this distinction. The prevailing inducement for considering a promise to accept as an acceptance is, that credit is thereby given to the bill. Now this
The rule generally adopted by the American courts in such a case is analogous to that by which the signer of a letter of credit has been held liable to those drawing bills or advancing money upon the faith of it. Molloy, bk. 2, c. 10, § 36. Pillans v. Van Mierop, 3 Bum 1663. Boyce v. Edwards, 4 Pet. 111. Russell v. Wiggin, 2 Story, 213. Carnegie v. Morrison, 2 Met. 381. Barney v. Newcomb, 9 Cush. 45. In re Agra & Masterman’s Bank, Law Rep. 2 Ch. 397.
The difference of opinion between the American and the English courts upon a question of commercial law, affecting the right of action upon negotiable instruments which pass freely between the two countries, is much to be regretted. But in view of the peculiar importance of maintaining consistency and harmony in the decisions of the various courts, state and national, throughout the United States, it is clearly our duty to follow the rule deliberately announced by the supreme court of the United States more than half a century ago, and ever since recognized and affirmed by the American authorities, with hardly an exception. The American rule has the advantages of being uniform in its application to all promises to accept a particular bill, not made to the holder or written on the very bill, whether made before or after it is drawn; and of restricting within the narrowest limits the anomalous doctrine of liability to an action upon negotiable paper, by reason of anything not appearing on the face of the paper itself.
In this case, the bill of exchange, when negotiated to the plaintiffs, was not accompanied by the bill of lading of the goods consigned to the defendants. The memorandum at the foot of the bill of exchange, that it was drawn against twelve bales of cotton, can have no more effect to charge the defendants as acceptors, than the mere signature of the drawer, which of itself
Upon the question whether the defendants, by reason of the subsequent receipt of the bill of lading and of the cotton therein mentioned, or of any other facts which were or might be proved, can be held liable in any other form, and, if so, for what amount, no ruling appears to have been made by the court below, and no opinion is expressed by this court. Exceptions sustained.