200 A.D. 681 | N.Y. App. Div. | 1922
The verdict was directed for the amount of the bills of exchange and interest, and not for the amount which the plaintiffs paid to the defendant, evidenced by the checks, which was $219.81 less; but the record does not show on which theory the court deemed the plaintiffs entitled to recover. The principal contention of the respondents is, however, that the judgment can be sustained on the theory that the recovery was for a loan of money; and their counsel argues that this is shown by the fact that the checks were delivered to the defendant and paid some days before the date of the bills of exchange and by the memoranda on the stubs' of the checks, which he claims shows that the moneys were advanced to the defendant and it was charged therewith by the plaintiffs, and that by accepting the voucher checks it recognized and admitted that such was the transaction between the parties. It will be observed, however, that the check of the earlier date and for the principal amount shows by the memorandum on the stub that it related to a merchandise transaction involving a draft, and the number written thereon is the number which is on all of the drafts, as shown by the plaintiffs’ letter to the defendant, with the letters following the number omitted. In view of the fact that the action is predicated on the drafts as well as the loan and not for a recovery on both, but for a recovery on either the drafts or on the loans, and the amount of the checks is less than the drafts by what might be expected to be the approximate amount to be deducted on discounting the drafts, and there being no other evidence, I am of opinion that the reasonable inference is that the checks, although apparently given a few days in advance of the delivery of the bills of exchange, represent the proceeds of the discount of the drafts by the plaintiffs, and that the plaintiffs must be deemed to have purchased the drafts. If this is the proper inference to be drawn from the evidence, it is unnecessary to discuss the point made by the respondents to the effect that they took the bills of exchange merely as security for the moneys loaned, and, therefore, are at liberty to abandon the bills of exchange and recover on the obligation to repay the money loaned. The authorities relied on by the
Here it appears on the face of the bills that they were foreign bills of exchange, and, therefore, the plaintiffs were not at liberty to regard them as inland bills. Section 260 of the Negotiable Instruments Law provides, among other things, that, if a bill of exchange appearing on its face to be a foreign bill is dishonored by non-acceptance, “ it must be duly protested for non-acceptance,” and further provides as follows: “If it is not so protested, the drawer and indorsers are discharged.” In the case at bar there is no evidence even of presentment of these bills of exchange for acceptance, and the failure to protest them for non-acceptance discharged the defendant from liability thereon.
The learned counsel for the respondents further contends that the defendant was primarily liable on these bills of exchange, and that, therefore, they were relieved under section 130 of the Negotiable Instruments Law from presenting the bills of exchange for payment as a condition precedent to holding the defendant liable thereon. That section provides as follows:
“ § 130. Effect of want of demand on principal debtor. Presentment for payment is not necessary in order to charge the person primarily liable on the instrument; but if the instrument is, by its terms, payable at a special place, and he is able and willing to pay it there at maturity and has funds there available for that purpose, such ability and willingness are equivalent to a tender of payment upon his part. But except as herein otherwise provided, presentment for payment is necessary in order to charge the drawer and indorsers.”
I am of opinion that the provisions of that section are not in point here, for this was not a case of failure to present a negotiable instrument to one primarily liable thereon for payment, but of failure to present these foreign bills of exchange for acceptance; and the drawer of such bills of exchange is not primarily liable thereon and is only liable according to the statute upon failure of the drawee on due presentment to accept or on due demand to pay, and on due protest for non-acceptance or non-payment.
It follows that the judgment should be reversed, with costs, and the complaint dismissed, with costs.
Dowling, Smith, Merrell and Greenbaum, JJ., concur.
Judgment reversed, with costs, and complaint dismissed, with costs.