Fisher v. Beckwith

19 Vt. 31 | Vt. | 1846

The opinion of the court was delivered by

Royce, J.

It is objected in behalf of the defendant, that there was not a due presentment of the order, either for acceptance, or payment, — nor any valid acceptance.

The case does not show, that the order was exhibited to the defendant, though he was informed by Denison, the plaintiff’s agent, that he had it; and this was at Sutton, the defendant’s place of residence. But an actual view, or precise description, of the order was not important to the defendant, under the circumstances. He had previously been apprised of all that was material by Woodman, the drawer; and his language to Denison fully implied, that he neither wished to see the order, nor to be more particularly informed respecting it. Besides, there is no rule, requiring that a bill of ex. change must be actually shown to the drawee, in order to a valid and binding acceptance. A party may; bind himself by an acceptance of a bill not yet drawn; as in the great case of Pillans et al. v. Van Mierop et al., 3 Burr. 1663. It is' enough, if, when applied to for acceptance, he is enabled, by seeing the bill, or otherwise, to give an intelligent answer. 1 Har. Dig. 493, and cases there cited. In this instance, the question of a proper presentment for acceptance is involved in that regarding the validity of the acceptance itself; for if the bill, or order, was well accepted, it is idle to say it was not sufficiently presented for that purpose.

A distinct presentment for payment is usually necessary, in order to fix the liability of antecedent parties to the bill, as the drawer and indorsers. It is always so, for that purpose, when the time of payment is to be distinct, and subsequent to that of acceptance. The reason is, that the undertaking of such parties is conditional, requiring a demand of payment, when due by the terms of the bill, and timely notice back to them, if payment is refused. But the obligation of the acceptor, if he accepts without qualification, is as absolute as that of the maker of a note. And hence it is laid down as a rule, that “ the acceptor of a bill, or maker of a note, is in general liable thereon, although the instrument has not been presented for payment; it being legally incumbent on the acceptor, or maker, to discover the holder, and pay it without presentment.” Chit. Cont. 728. Turner v. Hayden, 4 B. & C. 1. It is sufficient, however, for the present purpose, to notice, that the bill in question was made payable at sight, or on demand; so that a general acceptance would entitle the holder to immediate payment.

It is objected to the acceptance, that it was an undertaking to pay the debt of another, viz. the debt of Woodman to the plaintiff, and, being by paxol and not in writing, was void under the statute of frauds, — that it was given without consideration, — and that it was a conditional or partial acceptance, and therefore variant from the declaration.

It is not disputed, that, at common law, a parol or oral acceptance of a bill may be sufficient and binding. Nor am I aware, that; in an ordinary case, it was ever held to be a contract within the statute of frauds. Most, if not all, the reported decisions, adjudging such an acceptance good, have been subsequent to the English statute of frauds. Ereskine v. Murray, 2 Str. 817; Lumley v. Palmer, Ib. 1000; Syroat v. Matthews, 1 T. R. 182; and many others. It is .the common presumption, that a bill of exchange in the usual form is drawn on account of some indebtedness from the drawee to the drawer. Vere v. Lewis, 3 T. R. 182. Symons v. Parmenter, 1 Wils. 185; 2 Br. P. C. 43, S. C. in error. Chittenden v. Hurlburt, 2 Aik. 133. And in the present case that presumption is confirmed .by evidence. It follows, that the defendant’s acceptance was rather an undertaking to pay his own debt to Woodman, than Woodman’s debt to the plaintiff; although such a payment of the former might operate as payment of the latter also.

What has been said disposes of the objection for want of consideration. '

And if the plaintiff acquired a cause of action upon the acceptance, it could not be discharged, or affected, without his consent, by what afterwards took place between the' defendant and Woodman.

It only remains to say a word upon the point of variance. The declaration alleges a promise of the defendant, consequent upon his acceptance of the bill, to pay it according to its tenor. It was drawn payable on demand, and the defendant said he would pay it in a few days. But we think it is not to be inferred, when all his declarations are considered, that he meant to qualify his immediate liability according to the terms of the order. He had already declared, that “Woodman had told him all about it,'and that it was right.” These expressions import that the requirement to pay on demand was right, and that he assented to it; whilst those which followed were indefinite as to time, and were apparently used to gain a short indulgence, rather than to postpone his legal liability.

Judgment of county court affirmed.