39 N.Y. 216 | NY | 1868
The statute upon which this action is based provides that "an unconditional promise in writing to accept a bill before it is drawn, shall be deemed an actual acceptance in favor of every person who, upon the faith thereof, shall have received the bill for a valuable consideration." *218
The telegraphic authority to draw, was an unconditional promise to accept, within the statute (Ulster Co. Bank v. McFarlan, 5 Hill, 532); and, on the authority of the same case, it is conceded that the promise covered only a draft at twenty days'sight, and that the defendants were not bound to accept Ingraham's first draft, which was payable twenty days from date. So the plaintiffs seem to have learned at some time subsequently to the dishonor of the first draft, and hence they procured the second one. In the mean time the defendants wrote Ingraham the letter of the 22d of August, which the learned judge at the Circuit held to be a revocation of the authority to draw. But it is clear that this letter can have had no effect upon the rights of the plaintiffs. It never was communicated to them, and, if it had been, it raised no question of the defendants' liability to them, but contained rather an implied admission of such liability, and an appeal to Ingraham to protect them against it. Nor was it in the power of the defendants to revoke their promise after the plaintiffs had parted with their money on the faith of it. The statute makes the promise to accept, equivalent to an actual acceptance of the bill to be drawn, or, in other words, makes it a constructive acceptance, which may be treated as if it were actually made, and, as such, it was no more to be revoked after money had been advanced on the faith of it, than an actual acceptance written on the face of a bill. I think the liability of the defendants was fixed when the plaintiffs paid their money for this constructive acceptance of the defendants, and that, when the first attempt to make a draft to which that acceptance should apply, proved to be ineffectual, it was the right of the plaintiffs to have another draft, which should be within the prescribed conditions. Under other circumstances, it might well have been a question whether the time which the plaintiffs supposed to elapse before the second draft was presented was a reasonable time within which to avail themselves of the promise to accept. But, in this case, a draft had been drawn immediately, which was refused as not being within the authority to draw; then, two months later, the *219 plaintiffs wrote to the defendants, informing them that they had paid their money for this draft upon the faith of defendants' promise to accept it, and asking what their objection to it was. They had a right to wait for an answer to this letter before procuring another draft, and it is not for the defendants to object that they waited so long. They were fully informed of the plaintiffs' claim upon them, and I cannot see that they were prejudiced by the delay to enforce it. I have no difficulty in deciding, that, under all the circumstances of this case, the defendants' promise to accept applied to the draft in suit. The fact that this draft was post-dated, was not material; that date was an evident mistake, and, as the draft was payable twenty days from sight, the time of payment was determined by the date of its presentation.
The order of the General Term, reversing the judgment at the Circuit, should be affirmed, and, under the defendants' stipulation, judgment absolute should be rendered for the plaintiffs.
GROVER, J., dissents.
Judgment affirmed. *220
