WRITTEN AND VERBAL PROMISES TO ACCEPT EXISTING AND NON-EXISTING BILLS IN ENGLAND. 19. In England a written,' or parol' promise to accept an existing foreign bill, is considered equivalent to an acceptance; but as to inland bills the statute 1 & 2, Geo. IV, provides that no acceptance shall charge any person, unless in writing on the bill; but such acceptance may be written thereon before the bill is drawn.3 It is settled there that there can not be an oral promise to accept a non-existing bill, although the bill be discounted by the drawer on the faith of such promise to accept; and a written promise to accept a non-existing bill, (it must be foreign of course,) is not binding, unless communicated to the party who takes the bill on the faith of such promise. 20. It has been held that an authority from one person to another to draw bills on him is virtually an acceptance of all bills drawn in pursuance of such authority; and where one gave written authority to his agent to adjust certain business and draw on him for the moneys necessary, it was held to amount to an acceptance by the principal of drafts drawn with the assent of the agent upon him.7 § 21. It was said by the United States Supreme Court in the leading case of Coolidge vs. Payson, 2 Wheaton, 66, 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 afterwards takes the bill on the credit of the letter, a virtual acceptance, binding the person who makes the promise." This decision has been considered as limiting such acceptances to the cases in which the bill has been taken on the faith of them, and "The rule laid down," as said in Boyce vs. Elwards, 4 Cochran, 7 Pick, 134; Mendizabal vs. Machado, 6 Car. & P., 219; S. C., 3 M. & S., 841. 1Wynne vs. Raikes, 5 East, 514; Clarke vs. Cock, 4 East, 57; Powell vs. Mennier, 1 Atk., 611. Mendizabal vs. Machado, 6 Car. & P.; 8 Moore & S., 841; Pierson vs. Dunlap, 2 Cowp., 571; Miln vs. Prest, 4 Camp., 393. 3 Byles on Bills, 309. 'Johnson vs. Collings, 1 East, 98; Bank of Ireland vs. Archer, 11 M. & W., 383, (1843;) overruling, Miln vs. Prest, 1 Holt., 181, (1816.) 5Pierson vs. Dunlap, Cowp., 571; Mason vs. Hunt, 1 Doug., 296: Miln vs. Prest, 4 Camp., 393; Bank of Ireland vs. Archer, 11 M. & W., 383. "Van Reimsdyk vs. Kane, 1 Gallison, 630; Banerger vs. Horey, 5 Mass., 23; Mayhew vs. Prince, 11 Mass., 55; Wallace vs. Agry, 4 Mason, 336; Bissell vs. Lewis, 4 Mich., 450. 'Gates vs. Parker, 43 Maine, 544. Peters, 111, "requires the authority to be pointed at the specific bill or bills to which it is intended to be implied; in order that the party who takes the bill upon the credit of such authority, may not be mistaken in its application." And the letter in this case having been written two years before the bill was drawn, and not describing it, was held no acceptance.2 In Greele vs. Parker, 5 Wend., 414, it was said by Chancellor Walworth, "It is a well-settled rule of the commercial law of this country, and of most of the nations of Europe, where it has been recently altered by statute, that an unconditional promise in writing to accept a bill, if made within a reasonable time before or after the date of the bill, and describing the same in terms not to be mistaken, is a virtual acceptance thereof, in favor of any person to whom such acceptance has been shown, and who has received the bill for a valuable consideration on the faith of such promise." In McEvers vs. Mason, 10 Johns., 207, it was held that an indorsee who had taken a bill in ignorance of the promise to accept, could not recover on such promise, taking the same distinction as the foregoing cases, which seems well founded. It has been held that a promise to accept an existing bill may be sued on as an acceptance, whether the holder took it on the credit of such promise or not; but this ground does not seem to be well taken, and the contrary is well maintained in the case of Exchange Bank of St. Louis vs. Rice, 98 Mass., 288, in which it was held that a promise to accept a bill contained in a letter from the drawee to the drawer, written after the bill has been negotiated, will not enable the holder to sue the drawee as acceptor, even where the bill was expressed to be drawn "against twelve bales of cotton," and had been discounted on the credit thereof.1 VERBAL PROMISE TO ACCEPT BILLS ON THE UNITED STATES. § 22. Whether or not a verbal promise to accept a bill already drawn, or thereafter to be drawn, may be sued on as an acceptance, has been a question much debated in many of the States. 'See also Goodrich vs. Gordon, 15 Johns., 6; Wilson vs. Clements, 3 Mass., 1; Stover vs. Logan, 9 Mass., 55; Ontario Bank vs. Washington, 5 Wend., 593; Carrollton Bank vs. Fayleur 16 La., 490; Vance vs. Ward, 2 Dana, 95. 2 See also Wilson vs. Clements, 3 Mass., 1; Schimmelpennich vs. Bayard, 1 Pat., 264; Townsley vs Summerall, 2 Pet., 170; Wildes vs. Savage, 1 Story, 22; Russell vs. Wiggin, 2 Story, 213; Bayard vs. Lathy, 2 McLean, 462. Jones vs. Bank of Iowa, 34 Ill., 313; Read vs. Marsh, 5 B. Monroe, 8. 'See also, Lewis vs. Cramer, 3 Md., 265; Steman vs. Harrison, 6 Wright, 49. Without the intervention of statute, the better opinion seems that a verbal promise to accept an existing or non-existing bill will be binding, if communicated to the holder, and he takes the bill on the faith thereof. In Bank of Michigan vs. Ely, 17 Wend., 508, it was said that a parol promise (before the statute requiring acceptance in writing) to accept a future bill was not binding, unless the holder took it on the faith thereof. The converse is implied in this opinion, and has been so held in a number of cases.1 § 23. In those States where there is no statute regulating acceptance, the question of the validity of a verbal acceptance, or promise to accept, may become referable to the Statute of Frauds. Mr. Conway Robinson, in his Practice (Vol. 2, new ed., p. 153,) observes: "The parol acceptance being no more than a parol promise, it seems to the author that whether or no the acceptor can be charged on such promise may depend on whether the promise is to pay a debt of his own, or to answer for the debt of another. For, in the latter case, no action can be lawfully brought unless the promise or some memorandum or note thereof be in writing, and signed by the party, to be charged thereby, or his agent. Such is the provision of the Code of Virginia." This view was taken in Plummer vs. Lyman, 49 Maine, 229, in which it was held that a parol promise to accept an order from a debtor in favor of his creditor, between whom and the maker of the promise there was no privity, was invalid under the Statute of Frauds, as a promise to pay the debt of another. In Townsley vs. Sumrall, 2 Peters, 170, the United States Supreme Court held, that if a person verbally undertake to accept a bill in consideration that another will purchase one already drawn, or to be thereafter drawn, and as an inducement to the purchaser to take it, and the bill is purchased upon the credit of such promise for a sufficient consideration, such promise to accept was binding upon the party, and that it was an original promise, and not a promise to pay the debt of another within the Statute of Frauds. In this case the suit was for damages for breach of the contract, and therefore it was not decided that such a promise constituted acceptance.2 1Williams vs. Winans, 2 Green, N. J., 339; Crowell vs. Van Bibber, 18 La. Annual, 637. To the contrary: Kennedy vs. Geddes, 8 Porter, (Ala.,) 263; Strohecker vs. Cohen, 1 Speers, 349. Story, J., said: "This is not a case falling within the object, or mischiefs of the Statutes of Frauds. If A. says to B. pay so much money to C., and I will re-pay it to you, it is an original, independent promise; and if the money is paid on the faith of it, it has been always deemed an obligatory contract, even though it be by parol; because there is an original consideration moving between the immediate parties to the § 24. If, when the bill is presented the drawee refuse to accept, but promised to pay the payee the amount by a given day, the latter can not sue the drawee, although he was in funds and should have accepted.1 BREACH OF PROMISE TO ACCEPT A BILL. § 25. While a general authority to draw bills upon a party, without specification of the particular bills, will not authorize a suit against the party as an acceptor, even when a third person has taken the bill on the faith of such authority, yet the drawer may sustain an action against the drawee for breach of promise to accept.2 The evidence in the two cases would be materially different. In an action against the drawee as acceptor, it should apply to the particular bill alleged to have been accepted; while in an action for breach of promise to accept, the authority to draw might be collected from circumstances and extended to all bills coming fairly within the scope of promise. So there may be a suit for damages upon a verbal promise to accept a bill when based upon an adequate consideration.* If by promise and liability to accept, a drawee induces the drawer to draw upon him, and then refuses to honor the bill, he will be liable for all damages incurred, including protest. In Riggs vs. Lindsay, 7 Cranch, S. C., 500, it appeared that the defendant had ordered the plaintiff to purchase salt for him, and draw on him for the amount, and he having so purchased and drawn, it was held that the defendant was bound to accept the bills; and having failed to do so, that the plaintiff was entitled to recover the amount of the bills with damages and costs of protest, upon a count for money paid and expended, and that the bills themselves were good evidence on that count. It seems that if a person should write a factor that he had con # contract. Damage to the promisee constitutes as good a consideration as benefit to the promiser. In cases not absolutely closed by authority, this court has already expressed a strong inclination not to extend the operation of the Statute of Frauds, so as to embrace original and distinct promises made by different persons at the same time, upon the same general consideration: D'Wolf vs. Raband, 1 Pet., 476. * The question whether a parol promise to accept a non-existing bill amounts to an acceptance of the bill when drawn, is quite a different question, and does not arise in this case. If the promise to accept were binding, the plaintiff would be entitled to recover, although it should not be deemed a virtual acceptance; and the point, whether it was an acceptance or not, does not appear to have been made in the court below." 'Suff vs. Pope, 5 Hill, 413. "Boyce vs. Edwards, 4 Peters, 111. 3 Id. signed him certain goods, and would draw a bill on the credit thereof for a certain amount, the factor, if he accepted the consignment, would be bound to accept the bill; and that the payee of such a bill could sue the factor as upon a breach of promise to accept.1 § 26. The rule that the promise to accept, designating the specific bill amounts to an acceptance, seems applicable only to the cases of bills payable on demand, or at a fixed time after date, and not to bills payable at or after sight; for, in order to constitute an acceptance in the latter cases, a presentment is indispensable; since the time that the bill is to run can not be otherwise ascertained. And a mere promise to accept without more, it is thought applies only to bills payable at the drawee's or payee's place of business.3 ABSOLUTE AND CONDITIONAL ACCEPTANCES. § 27. It is the right of the holder of the bill to require an absolute and unconditional acceptance; that is, an acceptance in conformity with the tenor of the bill-and may cause it to be protested unless it be so accepted. The holder may, however, at his risk, take a conditional or qualified acceptance, and in such cases the acceptor will, if the condition be complied with, or the qualification admitted, be bound thereby; and the holder will likewise be bound by it; the burden of proof is on the plaintiff to show performance of the condition; and although absolute then it should be set out as conditional with an averment of performance." $28. Acceptances "to pay as remitted for;" "to pay when in cash for the cargo of the ship Thetis;" "to pay when goods consigned to me are sold;"10 "to pay when a cargo of equal value is consigned to me;"11 are examples of conditional acceptances. So where on presentment of bills for acceptance the drawee said he would have accepted them if he had had certain funds which he had not been able to 11 Pars., N. & B., 291. 'See Story on Bills, (Bennett's ed.,)? 249; Edwards on Bills, 414; Wildes vs. Savage, 1 Story, C. C. R., 28, Michigan State Bank vs. Leavenworth, 28 Vermont, 209. Bayley on Bills, 175. 5Smith vs. Abbot, Str., 1152; Julian vs. Shorbrook, 2 Wills, 9; Mitchell vs. Barring, 10 B. & C., 4; Ford vs. Angelrodt, 37 Misso., 50; Wintersmith 13. Post, 4 Zabriskie, 420. Read vs. Wilkinson, 2 Wash., C. C., 514; Gammon vs. Schmoll, 5 Taunt., 344 Mason vs. Hunt, 1 Deng., 297. 'Langston vs. Corry, 4 Camp., 176. Julian vs. Shobrooke, 2 Wills, 9. "Mason vs. Hunt, 2 Deng., 297. Banbury vs. Lisset, 2 Stra., 1211. |