Parker v. Greele, 2 Wend. 545

Parker v. Greele

2 Wend. 545 | N.Y. Sup. Ct. | 1829

By the Court, Sutherland, J.

A promise to accept a bill thereafter to be drawn, specifying the amount and time ■ of payment, so as to leave no reasonable doubt as to the identity of the bill intended to be accepted, is, if shewn to a third person, who, on the faith of such promise, takes the bill for a valuable consideration, in point of law, an acceptance, binding the person who . makes the promise. This doctrine is discussed at large, and fully established in the following cases : 10 Johns. R. 213 ; 15 id. 6; 2 Gallison, 238 ; 2 Wheaton, 66 ; 3 Burr. 1666 ; Cowp. 571 ; Douglass, 297 ; 1 East, 98 ; 4 id. 57 ; 5 id. 514 ; Miln v. Prest and another, (1 Holt, 181 ;) 4 Campb. 393, S. C ; 3 Com. Law R. 67; 1 Atk. 611 ; 2 Barn. & Ald. 113 ; Chitty on Bills, ed. of 1821; Phil. 218.

The evidence clearly shews that the letter of the defendant containing the promise to accept, which is relied upon by *549the plaintiff, was shewn to the Farmer’s Bank at Troy, before the bill was discounted by them, and that it was discounted upon the faith of such acceptance. The cashier expresses an unequivocal opinion that the draft would not have been discounted without the letter. The letter was also shewn to the plaintiff, when he was asked to endorse the bill. His endorsement was requested upon the ground of the defendant’s promise to accept, and undoubtedly was given upon that ground..

But it is contended on the part of the defendant, I. That, admitting the letter to amount to an acceptance, it was not an absolute but a conditional acceptance upon certain terms, which are not proved to have been complied with ; and 2. That the bill in question is not such a bill as the defendant promised to accept. The letter is in the following terms ; “ New-York, 9th Febr’y, 1827. Mr. Dan’l. H. Stone, Troy, Dear Sir; I have received 42 bundles medium as you mentioned. The imperial, I think, will sell readily. I have no objections to accepting for you at 3 and 4 mo’s, for $2500, on the terms you propose. I hope our navigation will be free by 15th or 20th inst. Yr. ob. serv’t. A. Greele.” It is evident that this is a reply to a letter from Mr. Stone requesting permission to draw on the defendant for $2,-500; and it may fairly be inferred that the draft was in anticipation of the proceeds of the paper, which the defendant acknowledges the receipt of, and that the terms alluded to refer to the manner in which Stone had proposed to provide for the bill. The defendant was satisfied with those terms, and absolutely promised to accept the bill. The terms alluded to were no part of the bill; nor can they be considered as a qualification, limitation or condition of the acceptance. The fair construction of the letter is : the terms you propose are satisfactory to me; I will therefore accept your draft at 3, and 4 months. But it was in the defendant’s power to shew what the terms were which Stone proposed, He was in the possession of the letter containing the proposition, and was not precluded by the judge from giving that or any other matter in evidence.

*550The last point raised by the defendant is not free from difAcuity. I am, however, inclined to think that the opinion expressed by the judge at nisi prius was correct, that a promise to accept for 02500 at 3 and 4 months authorized a draft for the whole sum at four months, the longest period named. The presumption of law is, that all bills are drawn upon funds belonging to the drawer in the hands of the drawee. (1 T. R. 406, 410, Buller, J. 3 T. R. 182. 2 H. Bl. 612. Chitty on Bills, 258.) The longer the' bill has to run, therefore, the more advantageous to the acceptor ; and the option given to draw for a part at three months must be presumed to have been intended for the benefit of the drawer, and if he thought proper to waive that advantage, and embrace the whole amount in one bill at the longest period named, .it would seem to be no violation of the spirit of the authority conferred by the drawee. It might well be contended, also, that the word and in the defendant’s letter was intended to be used as a disjunctive rather than as a copulative conjunction, and that the engagement was to accept either at three or four months. On the whole case, therefore, I am of opinion that the decisions at nisi prius were correct, and that the motion for a new trial ought to be denied.

New trial denied.