Stockwell v. Bramble

3 Ind. 428 | Ind. | 1852

Blackford, J.

This was an action of assumpsit brought by Nathan H. Stockwell, as payee of a bill of exchange, against one Bramble, as the acceptor. The suit was commenced before a justice of the peace. Plea, the general issue. The justice gave judgment for the plaintiff, and the defendant appealed to the Circuit Court. The cause was submitted to the Circuit Court without a jury, and judgment was there rendered for the defendant.

On the trial in the Circuit Court, the plaintiff gave in evidence the bill of exchange described in the declaration. The following was the bill: “ New York, September 11th, 1850. Windship Bramble, Esq., Lafayette: Pay to N. if. Stockwell, or order, 76 dollars and 50 cents, and charge to account as advised. Geo. W. Hoyt.” The bill was indorsed as follows: “ Pay J. M. Stockwell. N. H. Stockwell. Protested. W. W. W. H. T. Bramble ” The plaintiff then offered to prove the following facts: That the witness, as the agent of the plaintiff, in due course of mail after said bill was executed, received said bill for collection; that he, as such agent, immediately after receipt of the same, called on the defendant for acceptance or payment of the bill; that defendant told the witness he would and did accept the same, and would pay it, and stated, in the same conversation, that he did not wish to have it become generally understood that he was accepting and paying Hoyts drafts, and therefore would write across the face of the same, Protested, and sign his name thereto, which he then and there did as the same appears on the said draft; that after-wards, and after said draft was folded up and laid away, but on the same day, the defendant again promised that he would pay the draft — that he accepted the draft and would pay it in a short time thereafter.

This testimony was objected to and the objection sustained.

There was no other evidence.

We think that the parol evidence offered by the plaintiff was admissible, on the ground that it showed a valid acceptance of the bill by the defendant, after he had written on it the word Protested.

Suppose the word Protested, as written on the bill, to mean that the defendant refused to accept the bill, and the holder so understood that word; and suppose, also, that evidence of what the defendant said, at the time of such refusal, was objectionable as contradicting the word Protested, still the subsequent parol acceptance would be good. We know of no reason why the drawee of a bill, who has refused to accept the same, may not afterwards accept it. It frequently happens that a bill, after being protested for non-acceptance, is accepted by a third person supra protest. The following case is cited by Mr. Chitty: A foreign bill drawn on defendant was protested for non-acceptance, and returned, and afterwards defendant told the plaintiff, “ if the bill comes back I will pay it,” and this was held a good acceptance. Chitty on Bills, 316, note l. It is clear, therefore, that the fact of a bill’s having been protested, does not prevent its being after-wards accepted by the drawee.

G. S. Orth and E. H. Brackett, for the appellant. D. Mace and W. C. Wilson, for the appellee.

The acceptance is not objectionable merely because it was by parol. By the law-merchant, a bill, whether foreign or inland, may be accepted by parol as well as by writing; Chitty on Bills, 316; and that is the law here.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.