16 S.W. 321 | Tex. | 1891
This suit was brought by the appellee to recover of the Henrietta National Bank and Frank Brown, as its receiver, the amount of a check drawn upon it by E.F. and W.S. Ikard.
On the 22d of July, 1887, E.F. and W.S. Ikard drew a check on the defendant bank in favor of one T.F. West for $1800. West indorsed and delivered it to one Atkinson, who on the next day presented it to the cashier of the plaintiff bank at Fort Worth with the request that he cash it. The cashier immediately telegraphed the defendant bank as follows: "Will you pay E.F. and W.S. Ikard's check for $1800 on presentation?" The cashier of the defendant bank on the same day replied by telegram: "Yes; will pay the Ikard check." Upon the receipt of this telegram the plaintiff discounted the paper and the *651 holder transferred it to the bank by indorsement and delivery. The check was immediately sent by mail to the defendant bank with a request to remit the amount to the plaintiff. The letter reached Henrietta oil Sunday, and oil Monday before banking hours the directors of the defendant bank determined to suspend payment, and thereafter its doors were not opened for regular business.
The court having given judgment for the plaintiff for the full amount of the check and interest, and the defendants having appealed, they now complain in effect that the correspondence by telegraph between the two banks did not sufficiently describe the check so as to make the promise of the defendant bank in acceptance. The authority mainly relied upon by appellants' counsel in support of their contention is the case of Coolidge v. Payson, 2 Wheat., 66. In that case Chief Justice Marshall says: "Upon a review of the cases which are reported this court is of opinion that a letter written within a reasonable time before or after the date of a bill of exchange, describing it in terms not to be mistaken and promising to accept it, is, if shown to the person who afterward takes the bill oil the credit of the letter, a virtual acceptance binding the person who makes the promise." The doctrine was reaffirmed in the same court in the cases of Schimmelpennich v. Bayard, 1 Peterg, 284, and Bryce v. Edwards, 4 Peters, 111, and has been frequently followed in other courts. Whether according to the rules laid down the correspondence should show any more than the amount and character of the bill as to the time of payment we need not here inquire, though it would seem that such a description ought to be sufficient according to the most rigid rule recognized by any court.
The rule, however, applies only to a case in which it is sought to charge the defendant as the acceptor of the bill. Cases may arise in which the party who has promised to accept may be held liable upon the promise, although such promise may not be deemed equivalent to a formal acceptance. A practical difference between an action upon an acceptance and one upon a promise to accept is that the former may be brought by the holder of the bill, while the latter suit can only be maintained by the party to whom the promise is made. In this case the promise to pay the bill was made directly to the plaintiff, and it was upon the faith of that promise that the check was discounted. The suit is not brought upon an alleged acceptance. The petition states the facts in detail and seeks a recovery for the breach of the promise to pay the check. In Bryce v. Edwards, supra, the Supreme Court of the United States says: "The distinction between an action on a bill as an accepted bill and one founded oil a breach of promise to accept seems not to have been adverted to. But the evidence to support the one or the other is materially different. To maintain the former, as has already been shown, the promise must be applied to the particular bill alleged in the declaration to have been accepted. In the latter the *652 evidence may be of a more general character and the authority to draw may be collected from circumstances and extended to all bills coming fairly within the scope of the promise." It is clear that the promise in the case before us was sufficiently definite to support an action for a failure or refusal to pay the check described in the petition, if not sufficiently specific to authorize its being treated as an acceptance.
The check offered in evidence contained the character and figures "$1800.00" but in the body a line appeared to have been drawn through the word "hundred." If the word was intended to be erased it was a check for $18 only; if not it was a check for $1800. The line appears to have been drawn along the top of the word, rather than through it, and it is not at all clear that even without explanation it should be held to be an erasure. The member of the firm who drew the check testified that it was intended to be a check for $1800, and that he thought the line was upon the blank when the check was written. The circumstances attending the whole transaction leave no doubt, that the purpose was to draw a check for the amount claimed by the plaintiff, and that the line was either upon the paper when the check was drawn and was not discovered, or that it was subsequently placed there by some accident. That it was competent to prove that a mark of this character was not intended as an erasure, especially when the figures in the margin tend to show the same fact, we have no doubt. Sharswood's Starkie on Ev., 500. The defendants introduced testimony tending to show that a prudent banker would not have paid the check, at least without inquiry as to the intention of the drawers in executing it. This may be true, but so far as this case is concerned it is a fact of no importance. It was nevertheless the duty of the defendant bank to pay the check. An inquiry would have shown beyond doubt that it was a check for $1800, and though the apparent erasure may have justified a delay of a reasonable, time to make inquiry, it did not justify a final refusal to pay.
We find no error in the judgment, and it is affirmed.
Affirmed.
Delivered May 1, 1891.