Mobley v. Clark

28 Barb. 390 | N.Y. Sup. Ct. | 1858

By the Court, Davies, P. J.

It is difficult to perceive upon what ground the plaintiff can recover in this case. This draft was given as a convenient method to obtain payment of an existing debt of this corporation. The plaintiff parted with nothing on the faith of it, and is in the same position now, as he was before he received it. That a draft drawn under such circumstances, and for such a purpose, need not be presented for payment and demand made, is settled by the court of appeals in Fairchild v. Ogdensburgh Rail Road Co., (15 N. Y. Rep. 337.) Denio, O. J., there says : "The paper which it is alleged was given for this indebtedness was not a bill of exchange. The idea of a bill, under the law merchant, supposes the existence of a party other than the drawee to whom the bill is addressed, and who is therein requested to pay the amount to the holder on account of the drawer. Here the party with whom the plaintiff dealt was the corporation, which being an artificial person, could only act by agents. ® * ® * Both the drawee of the order and the party to whom it was addressed, represented the corporation, and neither incurred or were expected to incur any personal obligation. The default of either, in performing any duty respecting the order, would be the default of the corporation, and would not subject either of them to any individual liability. * * * To require from the holder of such a draft the kind of diligence which the law exacts of the holder of commercial paper, would he a perversion of its object.” This authority, and the conclusiveness of this reasoning, dispose of the present case. It meets it at all points, and there is no escape from its binding character.

[New York General Term, September 20, 1858.

Devies, Hogeboom and Sutherland, Justices.]

But it was urged by the plaintiff's counsel on the argument, that Bellows, the drawer of the draft, had made himself liable individually upon the draft, and that therefore the plaintiff was entitled to enforce that liability; which right he had been deprived of by the neglect of the defendants.

There are several answers to this position.

1. If the court of appeals are correct in the case cited, (supra,) the drawer of this draft never was liable individually, nor could he be made liable by protest and notice to pay it.

2. The drawer himself testifies that he should never have defended on that ground, and that he never objected to payment by him upon that ground.

3. It conclusively appears that the drawer had no funds in the hands of the drawee applicable to the payment of this draft, and that he had no reasonable expectation that he would have funds for that purpose. To charge the drawee of a bill in such a case, a presentment of the bill for payment, and protest and notice, are not necessary. (Edwards on Bills, 490, and cases cited.) If Bellows, the drawer of this draft, was individually liable to the plaintiff to pay the same, he has not been discharged from such liability by any act of the defendants, or any omission on their part.

We think the motion to dismiss the complaint was properly granted, and that the judgment appealed from should be affirmed with costs.