Mehlberg v. Tisher

24 Wis. 607 | Wis. | 1869

Dixon, O. J.

Tbe written instrument drawn up, signed and delivered by tbe defendant Tisher to tbe plaintiff, and directed to Hoxie and Rich, requesting them to pay to tbe plaintiff tbe sum of sixty-nine dollars and twenty cents, and charge to Tisher, the drawer, was a bill of exchange. It is not essential to the validity of a bill of exchange that it should be made payable to order, or bearer, or have the words “ valne received,” or be payable at a day certain, or at any particular place. Kendall v. Galvin, 15 Maine, 131; Arnold v. Sprague, 34 Vt. 402; and Dayton v. Trull, 23 Wend. 345, and cases cited. The taking of a bill of exchange on a previous indebtedness of the drawer to the payee, is prima facie payment of the debt. It is absolute payment, if the payee, or holder, through his own negligence, fails to take proper steps to obtain payment of the bill, or, if not paid, to charge the drawer with liability upon it; as, if the payee or holder fails to present it within the proper time, or, presenting it, fails to give proper notice of its non-acceptance or non-payment in cases where such notice is required. These principles are well settled, as will be seen from the authorities above referred to.

The bill here was presented for acceptance and payment, and both were refused; but no notice thereof was given to the defendant Tisher. This was a discharge of the debt sued upon, unless it can be shown that the case was one in which such notice was not required. The general'rule is that notice must be given. To this rule there are some exceptions ; one of which is, where the drawer has no funds or effects in the hands of the drawee. It is claimed that the case falls within this exception, and that it was so shown on the trial. The bill of exceptions purports to contain all the evidence, and the only proof appearing on this subject is the testimony of the plaintiff, who stated that the drawees told him “they had no money to pay it.” This was no evidence to establish the fact. It was mere hearsay, and not competent to be received or considered for that purpose. It was let in, undoubtedly, through mistake or inadvertence, and not with a view to showing that there were no funds or effects belonging to the drawer in the bands of tbe drawees. Tbe burden of showing that there were no snob funds or effects, rests upon tbe plaintiff; and until that fact is made out by good and sufficient evidence, there can be no recovery against tbe defendant Tisher in this action.

By the Court. — Judgment reversed, and a venire de now awarded.