Goodrich & De Forest v. Gordon

15 Johns. 6 | N.Y. Sup. Ct. | 1816

Thompson, Ch. J.

delivered the opinion of the court. There can be no doubt that the contract for the ransom of the vessel was a lawful contract. Such contracts are sanctioned by the laws of nations, and are not deemed a trading with the enemy; (2 Azuni, 313.) nor was the passport given by the captors, upon the ransom) and accepted by the master of the captured vessel, in violation of the act of Congress. (2d Aug. 1818.) It was merely a certificate, given by the captors, to serve as a passport, and protect the ransomed vessel, from all other armed vessels belonging to the nation of which the captors were subjects, and to prevent another capture. (2 Azuni, 316.) It may, perhaps, come within the exception to the act of congress, (2d sec.) which declares that the act shall not prevent the acceptance of "a

t passport, granted by the commander of any ship of war of enemy, to any ship or vessel of the United States, which may have been captured and given up, for the purpose of carrying prisoners, captured by the enemy, to the United States. Admitting, however, that the instrument given in the case before us is not the one contemplated by this provision, still, I think, the act does not at all extend to such certificates.

The only question in this case, then, is, whether .the defendant is chargeable as an acceptor of this bill. In Pillans Rose v. Van Mierop Hopkins, (3 Burr. 1663.) Lord Mansfield, and the whole court, go the full length of Saying, that a promise to accept a bill is equivalent to an acceptance, whether it be before or after the bill is drawn. Lord Mansfield, however, afterwards, in the case of Pierson v. Dunlop, (Cowp. 573.) in some measure, limits and qualifies his former doctrine. He observes, that it has been truly said, as a general rule, that the mere answer of a merchant to the drawer of a bill, saying, I will duly honor it, is no acceptance, unless accompanied with circumstances, which may induce a third person to take the bill by endorsement; but if there are any such circumstances, it may amount to an acceptance; thereby confining the rule to cases where third persons have acted upon the faith" of such assurances, and have been induced, in- consequence thereof, to take the bill, In Johnson v. Collins, (1 East, 98.) the rule, as laid down in Pillans v. Van Mierop, is certainly overruled; and, from the observations of the judges, the limitation and qualification, as contained in Pierson v. Dunlop, is not either sanctioned or approbated ; nor am I aware that it has been expressly adopted, in any subsequent decision, in the English courts. But I think it may fairly be inferred, from the observations of the late Chief Justice, in M'Evers v. Mason, (10 Johns. Rep. 214.) that the rule, as laid down in Pierson v, Dunlop, is approved of by this court. It is there said, every one will agree, that an acceptance by a collaterai paper may be good ; and if that paper be shown to a third person, so as to excite credit, and induce him to advance money on the bill, such third person ought not to Suffer by the confidence excited. Whether these observations were intended to apply to collateral acceptances of a bill already drawn, or to be afterwards drawn, does not appear. But I cannot see any sound principle upon which the cases can be distinguished. No question of want of consideration can arise in either case, and it is the credit, which such acceptance or engagement to accept has given to the bill, which gives to it its binding operation. The testimony in the case before us is very full to show, that this letter of the defendant, authorizing the drawing of the bill, accompanied it, at all times, and that it was upon the credit of that letter that the bill was taken by the plaintiff. It appears to me to be a gross violation of good faith, in the defendant, now to disclaim the authority of the captain to draw the bill. The letter may well be considered an authority to draw, accompanied by a promise to accept. It was an authority given for the express purpose of enabling the captain to draw the bill, which was an act done for the benefit of the defendant, and according to his instructions ; and I think it binding upon him as an acceptance ; and this is the opinion of the court. The plaintiff is, accordingly, entitled to judgment.(a)

Judgment for the plaintiff.^(a)

(a) Vide Coolidge v. Payson, (2 Wheaton, 66.) in which the supreme court of the United States decided, “ upon a review of the cases which are reported, that á letter, written within a reasonable time, before or after the date of a bill of exchange, describing it in terms not to be mistaken, and promising to accept it, is, if shown to the person who after-wards takes the bill, on the credit of the letter, a virtual acceptance, binding, the person who makes the promise.”