Harvey v. Troupe

23 Miss. 538 | Miss. | 1852

Mr. Chief Justice Smith

delivered the opinion of the court.

This was a suit upon a bill of' exchange, brought by the defendant in error against the drawer, in the circuit court of Lowndes county. There was a verdict and judgment for the plaintiff. A motion was made for a new trial and overruled, and the defendant filed a bill of exceptions to the decision of the court on the motion. The bill contains all the evidence which was offered on the trial.

The plaintiff offered no proof of notice to the drawer of the non-payment of the bill, but relied solely on the promise of the drawer to pay, made after the maturity of the bill, as a waiver of demand, and notice of protest.

The first exception taken by the plaintiff in error applies' to the charge of the court given at the instance of the- plaintiff below. The instruction is in the following words, to wit: “ A promise by a drawer of a bill of exchange after its maturity, to pay the same or any part thereof, is a waiver by him of presentment to the acceptor, of demand of payment, and notice of 'protest.” It appears to be settled that such a promise, where the party has been discharged by the laches of the holder,- made with a full knowledge of such' fact,- will amount to a waiver. Story on Bills, p. 440, § 373; Chitty on Bills, ch. 10, p. 537; 5 S. & M. 51. Without such knowledge, a promise to pay would only amount to prima facie evidence that all the acts necessary to charge -such party had been duly performed. In the case at the bar, it was proved that the promise to pay by the defendant, was made with a full knowledge that the- bill had not been protested. Hence, the charge was applicable to the facts before the jury, and stated the law correctly. - .

The charge given in lieu of the instruction requested by the defendant was correct; but we think that the court, notwithstanding, should have given the charge as requested by the defendant; A promise to pay generally, or a promise to pay a part, or a-par.t payment, made,' with a full knowledge that he has been released from liability on the bill by the neglect of the holder, will operate as a waiver, and bind the party who makes it for the payment of the whole bill. Chitty on Bills, 540, ch. 10; Margitton v. Arthur, 3 Car. & Payne, 338.

In these cases the party making the promise, or part payment, becomes bound for -the whole bill, upon the presumption that he intends to bind himself to that extent. But such a presumption cannot exist where the party, who is bound alone by his promise, expressly limits his liability to the payment of only a part. Chitty on Bills, ch. 10, 540, (notes.)

But for this error should the judgment be reversed ? We think not. The verdict of the jury was correct according to the law and the facts.

The bill was drawn upon Rhea, Sykes & Co. of Mobile, and by them accepted for the accommodation of the plaintiff in error, who at the time the bill was drawn had no funds in the hands of the drawers. Rhea, Sykes & Co. failed some time before the bill matured, and the firm was dissolved. Of this fact the plaintiff in error had notice, and shipped, his crop of cotton to another house ; at least, all that he had ready in the fall, for market. No cotton was shipped to the firm of Rhea, Sykes & Co., for the reason that no such firm existed. Up to the time when this firm was dissolved, the plaintiff in error had no funds in the hands of the drawers. It is manifest, therefore, that plaintiff was not entitled to notice of the non-payment of the draft. The jury were not influenced by the instruction of the judge, and by that means induced to return an erroneous verdict. They could not have found otherwise than they did.

Let the judgment be affirmed.