80 W. Va. 137 | W. Va. | 1917
This writ of error was awarded to a judgment for defendants, rendered by the circuit court of Clay county, in an action therein tried on an appeal from the judgment of a justice.
Being indebted to Lewis, Hubbard & Co., a corporation, defendants gave it the following order:
*138 “West Virginia Timber Co.,
Charleston, W. Va.
$165.49. Please pay to the order of Lewis Hubbard & Co., One Hundred sixty five & 49/100 Dollars and charge to our acct.
J. J. Morton & Co.
By J. J. Morton.”
The West Virginia Timber Company conditionally accepted the order as follows:
“This order will be paid whenever the lumber is inspected and placed to the credit of J. J. Morton & Co.
West Virginia Timber Co.,-
G-. E. Breeee, President.”
Neither the order nor the acceptance is dated nor is any time of payment specified. But the absence of a date and failure to state time when payable do not render the order invalid. An instrument in which no time for payment is expressed is payable on demand. See. 7, Ch. 98A, Barnes’ Code; 1 Daniel Neg. Inst., sec. 88; 3 R. C. L. 920. An instrument not dated will be considered to be dated as of the time it was issued. Secs. 4 and 17, Ch. 98A, Code; and 1 Dan. Neg. Inst., sec. 83.
The contention, that the paper is not a bill of exchange, can not be sustained. It fills the description of such instrument in every material respect. Sec. 126, Ch. 98A, Code, defines a bill of exchange to be “an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed, determinable future time, a sum certain in money to order or to bearer.” This definition is but declaratory of the law merchant. 1 Dan. Neg. Inst., sec. 35. '“A bill of exchange is defined as an open letter of request from and order by one person on another, to pay a sum of money therein mentioned to a third person at a specified time absolutely and at all events.” 3 R. C. L. 830. We have already seen that the absence of a date or time of payment is not material.
The uniform. negotiable instruments statute makes little
On the 19th of January, 1907, the defendants, J. J. and L. L. Morton, partners, had, by written contract, sold to the West Virginia Timber Company all the lumber of certain description then on their mill-yards at G-reendale, estimated to be about 150,000 feet, and all the lumber of the same descriptions that they would saw at the same place, likewise estimated to be about 150,000 feet, at prices ranging from $12.50 to $36.00 per M. feet, according to kinds and grades. The Timber Company was to inspect it, according to the rules of the National Hardwood Lumber Association, when it was in shipping condition, and such inspection was to be the basis of settlement between them. The Timber Company was then to execute its acceptance, due in four months, for seventy-five per centum of the value of the lumber inspected, and the other twenty-five per centum was to be paid when the lumber should be delivered at the railroad. Defendants were to make delivery at the railroad, and were to begin as soon as the country roads were in condition for hauling, and to complete delivery by the 1st of August, 1907, including the lumber not then manufactured.
The West Virginia Timber Company never paid the order,
Affirmed.