Wheeler v. Webster

1 E.D. Smith 1 | New York Court of Common Pleas | 1850

By the Court. Ingraham, First J.

That the acceptance of this draft is a compliance with the provisions of the statute, is settled by the case in 2 Hill, 582, which of course controls us in the examination and decision of the question.. The supreme court have held that the mere signature is sufficient. It is not a literal compliance with the statute, which inquires the acceptance to be in writing, and, in addition to that, requires the acceptance to be signed by the party making it,

I am of the opinion, that the omission of the name of the drawee at the foot of the bill, will not vitiate it. The acceptance may be considered as supplying the defect, and as being an admission by the acceptor, that he is the person intended.. At any rate, it does not lie with him to make such defence, after having admitted, by the aeceptanee, that he was the person intended, and after having promised to pay the draft at maturity. He is estopped, by his own act, from such a defence.

But I think the evidence in regard to the statute of limitations was entirely insufficient to bring the case within the exception of the statute. Independently of the question as to the sufficiency of general repute to prove absence, the testimony did not show what the statute requires to suspend its operation.

There are two exceptions to the operation of this statute: 1. Where the debtor is absent from the state when the cause of action accrued. 2. Where the debtor, after the cause of action has accrued, shall depart and reside out of the state. From the pleadings, it appears that the first exception was not relied on. In order to bring the case within the second, it was necessary to prove that the debtor departed from the state, and also that he resided out of the state. The evidence did not show this. For aught that is in proof before us, the absence may have been merely temporary; excursions for pleasure or business, with a return to this state as the residence of the debtor. It is true, that the fact may be known to us individually, that the defendant is a resident of another state; but that knowledge is of no avail in disposing of these questions. The plaintiff should have proven that the defendant) was a resident of some other place than the state of New York, or should have shown a residence for some time elsewhere.! The witnesses were not even asked as to the residence of the defendant at any period, but simply proved a repeated- absence from time to time from the state. I think this is not enough to sustain the replication, and that the judge erred in charging that the plaintiff was entitled to recover.

A new trial must therefore be ordered.