| Ill. | Jun 15, 1873
delivered the opinion of the Court:
The theory of the-plaintiff in this case, appellant here, is, that the orders or drafts drawn by Charles Grothe in his favor, on Robert M. Steel, were accepted by Steel, who has thereby become liable to their payment.
We do not think the testimony sustains this view. It may be, in strictly commercial transactions, such paper, being retained by the drawee and not returned to the payee in a reasonable time, may be considered as accepted by the drawee and his liability to pay fixed. But, as we understand the facts, these orders were sent to Steel, who was the principal contractor on the work, to be-entered in his “stoppage book,” and when the monthly estimates came in, their amount would be withheld from Grothe, the sub-contractor, and paid on the orders thus entered in the book.
This had been the course of dealing between these parties, and, from the ¡plaintiff's own testimony, he expected no other course would be pursued with respect to these particular orders. There was no formal acceptance by defendant of these orders, nor was it expected by the plaintiff there would be.
But, from the course of dealing between these parties with like previous orders, the plaintiff had the right to be paid on them so much money as was in the hands of the defendant, coming to Grothe for his work under the contract. It is in proof, there was forty-five per cent of these orders then in the defendant’s hands properly payable on these orders, and it should have been paid to the plaintiff, burdened with no such conditions as the defendant sought to impose.
The plaintiff, in our opinion, is entitled to recover this forty-five per cent, and the court should have so found. Failing in this, the judgment must be reversed, and the cause remanded for further proceedings consistent with this opinion.
Judgment reversed.