Ford v. McClung

5 W. Va. 156 | W. Va. | 1872

BerKshire, P.

This was an action of debt, by the endorsees of an order, against the drawer.

■ The order was drawn by the appellee, on the cashier of the Farmers’ Bank of Virginia, at Lewisburg, in favor of Stephen A. Porter, and endorsed by the latter, before presentation to the drawee for acceptance or payment, to Smith Darnell, and by him to the plaintiffs. There was a demurrer to the declaration and to each count, which was sustained, and leave given to the plaintiffs to amend the same, which, by consent of parties, was done in court. The amended declaration, and each count, was also demurred to, but the demurrer was overruled. The defendant pleaded nil debit, and also tendered five special pleas; numbers 2, 3, 4 and 5 of which pleas were, on motion of the plaintiffs, rejected, and issue was joined on numbers 1 and 6; but the latter was withdrawn by the defendant without objection, before the trial. In the view that is taken of the case, it will not be necessary to consider any of the questions that might arise on the demurrer to the declaration or rejection or withdrawal of the pleas, as they could not be to the prejudice of the appellants. The questions made in the record that it is necessary to consider, are three : 1st, Did the court err in refusing to allow the appellants to introduce evidence tending to prove the consideration of the order, mentioned in their first bill of exceptions ? The drawing or making of the order implied the indebtedness of the drawer to the payee to, at least, the amount of the order. And as the only issue between the parties in this action was whether, under the proof in the case, the plaintiffs were entitled to recover, it could not, it appears to me, be pertinent or material to such issue, to enquire into the consideration upon which the order was founded. For, if by reason of the misconduct or negligence of the payee or his endorsers, the defendant was not liable to the plaintiffs for the amount of said order, it is clear that he is entitled to the benefit of it, whether it was originally drawn to pay an existing indebtedness to the payee, or for any other purpose. 2d, Was there error in giving or refusing the instructions set out in the appellant's second bill of exceptions? Tlie plaintiffs and defendant each asked for an instruction, both of which seem to have been refused, and one given by the court in lieu of them. Neither the appellants nor appellee have complained here of the refusal to give the instruction asked by the latter, and it is, therefore, not necessary to consider it. I think there is nothing in the record to justify the instruction asked by the former, and that it was properly overruled. Nor is anything perceived in the instructions given by the court, of which the appellee can justly complain. 3d, Was any error •committed in refusing the appellants a new trial, uj>on the facts disclosed by the record ? This is a material enquiry, and goes directly to the merits of the whole controversy. The order bears date the 10th of September, 1862, and it appears that it was never presented by the appellants to the drawee for acceptance or payment, until after the close of the late rebellion, and that the appellee was not notified of the non-payment or dishonor of said order, and never in fact heard anything of it from the time he delivered it to Porter, the payee, until some time after the close of the said civil war, being a period of some three or four years.

But it was, nevertheless, earnestly and ably maintained by the counsel for the appellants, that, under the facts shown by this record, the appellants were excused from making such presentation to the drawee, and also from giving notice of the non-payment of the order, and that the appellee ought to be made liable for the amount thereof, in this action, notwithstanding such failure on their part.

The drawer of a bill of exchange, or order, is not directly liable to the payee or his endorser, but his implied obligation or contract is to pay, in the event the amount is not paid by drawee. And the general rule is well established, that the drawers and endorsers are entitled to prompt notice of the non-acceptance or non-payment, in order that the former may look after his funds and withdraw or secure the same, and that the latter may take the necessary steps to secure himself; and that upon the failure to receive such notice, they are discharged from liability; and the bill or order, as between the drawer and payee or endorsee, will be considered paid. 1 Tucker Com., 395 and note; Farmers' Bank vs. Vanmeter, 4 Ran., 453. But there are well-defined exceptions to this rule, and numerous cases may be found in which, under the peculiar circumstances of the ease, the holder has been excused from presenting the bill or order to the drawee, or giving notice of the non-acceptance or payment thereof. The testimony in this case, however, fails, I think, to furnish a sufficient excuse for such omission on the part of the appellants, or to bring them within the exceptional cases. It does not appear that there was anything to prevent the appellants from presenting the order to the drawee for acceptance and payment; nor that if so presented, it would not have been paid or adjusted by the latter. Nor, from aught that appears, can it with propriety be said that they could not have given notice of non-payment or acceptance, to the appellee, if the order had been so presented. The residence of the parties does not appear, and there was certainly nothing in the extraordinary condition of the country, at the time, which necessarily precluded them from giving such notice. It was argued that the appellee had no funds in the hands of the drawee at the time the order was drawn, and that he had notice or knowledge at the time that the funds of the bank had been removed from Lewisburg a short time previous. But it does not so appear from the record. On the contrary, it is shown that he had funds in the hands of the drawee to a much larger amount than the order at the time it was drawn (though the iarger portion was Confederate currency), and there is nothing in the case from which it can be justly inferred that he had any notice or knowledge at the date of the order of such removal of the funds from said bank.

And it was also insisted that it satisfactorily ajrpeared that the appellee had sustained no injury by reason of such failure on the part of appellants to give notice of non-payment, &c., and ought, therefore, to be held liable. In my view, this is incorrect. The law, in case of such failure to give notice, implies injury to the drawer, and nothing appears in this case to sufficiently rebut this presumption, or to justify us in holding that no injury in fact resulted in this instance to the drawer, from the negligence of the appellants; or in assuming that, if he had been duly notified of the non-payment of said order, he might not have secured his funds, or at least arranged to have paid the order out of the same. Upon the whole case, I think the judgment ought to be affirmed, with •costs and damages.

The other members of the court concurred.

JüDGMENT AFFIRMED.