3. Acceptance May Be Implied.

HOUGH v. LORING.

24 Pick. 254. 1837.

Assumpsit on an order or draft for the sum of $50, dated New York, April 3, 1834, drawn by Eliza Woolcutt on the defendant, in favor of the plaintiff.

At the trial in the Court of Common Pleas, before STRONG, J., it was proved by the deposition of W. W. Morse, that the draft was sent to Boston to be collected, while the defendant was absent on a journey to New York; that the witness, who said he was the agent of the plaintiff, informed the defendant in New York that the draft had been made and sent to Massachusetts, and produced to the defendant a discharge from the draft and requested him to pay it; that the defendant looked at the discharge, and replied that "he would rather pay it in the regular way, when presented," and that "he would meet it at the Concord Bank, or pay to any person who should present it;" that the defendant returned home, and soon afterward the draft was sent back from Massachusetts; that the plaintiff then gave the draft to the witness with his name indorsed thereon, and requested him to enclose it to the defendant and to ask him to send a fifty-dollar bill by mail; that the witness did so, by a letter dated April 15, 1834, but received no answer; and that he afterward wrote to the defendant again and again on the subject, without receiving any reply.

By the deposition of Henry Hutchinson it appeared that the deponent received at New York a letter from the defendant, dated May 26, 1834, in which was the following clause: "I received an order from Mr. Morse, drawn by Eliza for fifty dollars, which will be disposed of some way or other when I am there."

The Judge ruled that this evidence proved a conditional acceptance of the order by the defendant, but that it did not appear from the evidence that the condition had been complied with by the plaintiff; and he instructed the jury that if they believed the witnesses, they must find for the defendant.

The jury returned a verdict for the defendant.

The plaintiff excepted to the instruction, that it did not appear from the testimony that the condition on which the order was accepted had been complied with.

PUTNAM, J. Taking it to be true that this was originally a conditional acceptance, and that the condition was not performed, yet there are other facts proved in the case upon which the jury might have found a verdict for the plaintiff. If the condition were waived and an absolute acceptance were made after the conditional one, it is very clear that the subsequent absolute acceptance should bind the defendant to pay the bill.

The defendant originally refused to accept a discharge of the bill, which was executed by the plaintiff; but said "he would rather pay it in the regular way when presented," and that "he would meet it at the Concord Bank, or pay to any person who should present it." He did not mean to trust to the discharge which was produced; but he meant to take up the draft, to have the draft in his own possession, before he paid it.

Well, the plaintiff afterward sent the draft, indorsed by him, on the 15th of April, 1834, in a letter addressed to the defendant, which the defendant received. Upon the receipt of that letter and draft, the defendant might have insisted, if he had pleased, upon the performance of the strict terms of the condition, viz., that some person should come and present it and give it up, upon payment; or he might consider the sending the draft with a blank indorsement as a presentation; and having the draft itself so indorsed, he might intend to accept and pay it. If he intended to insist upon the original terms, he was bound to answer the letter of the 15th of April in a reasonable time, to the end that the plaintiff, the holder of the bill, might take his further remedy, by complying literally with the condition originally proposed. He was requested to send the fifty-dollar bill by the mail in payment. He might have answered that he would do no such thing, but that if the holder would authorize any person to come to him and receive the money, he would pay it, and in the meantime hold the draft, for the use of the holder. But he did not take such a course. On the contrary, he kept the bill, and the money also, and refused to answer the repeated letters of the agent of the plaintiff upon the subject. He has retained the draft and the money ever since. But on the 26th of May, 1834,

he acknowledged by his letter that he had received the order drawn by Eliza (the drawer) for $50, "which will be disposed of some way or other when I am there." Now he makes no objection as to the want of a due and regular presentation or acceptance of the draft; but, on the contrary, agrees to make some disposition, which may fairly mean to pay the same when he should be at New York. Now if there was a waiver of the original condition, and such consent afterward as amounted to a presentation and acceptance, it renders the acceptor liable; and it is not for him afterward to postpone the payment, or make any terms when or where he will pay. He became liable to pay as upon an absolute acceptance. Thus, in Chitty on Bills (Story's ed. 147) it is stated that an acceptance may be implied as well as express. It may be implied and inferred from the drawee's keeping the bill a great length of time, or by any other act which gives credit to the bill, and induces the holder not to protest it and induces him to consider it as accepted: Clavey v. Dolbin. Cas. temp. Hardw. 278; Harvey v. Martin, 1 Campb. 425.

Now, here the holder had no reason to suppose that the bill was not accepted, as it was retained by the defendant in the manner stated. We all think that the facts, whether the defendant waived the condition originally made, and whether he did not so conduct himself afterward as should by implication bind him as an absolute acceptor of the draft, were proper to be left to the jury. The jury might well infer an absolute acceptance from the facts disclosed in this report, if not contradicted or explained by other evidence. If there were such an implied acceptance, it could not be recalled: Thornton v. Dick, 4 Esp. R. 272.

We are all of opinion that the verdict should be set aside and a new trial be had at the bar of this Court.

4. The Holder is Entitled to an Absolute and Unconditional Acceptance, But May Accept Less and It Will be Binding on the Drawer.

PETIT v. BENSON.

Comberbach, 452. 1679.

A bill was drawn upon the defendant, who accepted it by indorsement, in this manner: "I do accept this bill to be paid, half in money and half in bills." And the question was, whether there could be a qualification of an acceptance; for it was alleged that this writing upon the bill was sufficient to charge him with the whole sum. But it was proved by divers merchants that the custom among them was quite otherwise, and that there might be a qualification of an acceptance; for he that may refuse the bill totally, may accept it in part. But he to whom the bill is due may refuse such acceptance, and protest it so as to charge the first drawer; and though there be an acceptance, yet after that he hath the same liberty of charging the first drawer as he before had.

Acceptances for Honor, or Supra Protest."

HOARE ET AL. v. CAZENOVE ET AL.

16 East's Rep., 391. 1812.

In an action by the indorsees of the bill of exchange hereinafter set forth against the acceptors, the declaration contained the usual averments (the 1st count averring that the bill was presented for payment to the drawees and refused, the 2d count omitting that averment), and charged that the bill having been refused acceptance by the drawees, and being thereupon duly protested for non-acceptance, the defendants, having notice thereof, accepted the bill for the honor of the first indorsers. The defendants pleaded the general issue; and at the trial before Ld. Ellenborough, Ch. J. (1811), a verdict was found for the plaintiffs for 8167., subject to the opinion of the court on the following case.

The bill of exchange stated in the declaration was drawn by See Sec. 800, Vol. 6, Cyclopedia of Law.

S. Hanbury at Hamburgh, on the 23d of July, 1810, upon Penn and Hanbury of London, in favor of Quevremont Balleydier & Co., for 800l. sterling, at 130 days after date. It was specially indorsed by Quevremont Balleydier & Co., to Perier Freres; by them to F. Farmbacher, all of whom reside abroad; by F. Farmbacher to Greffuhle, Freres & Co., who reside here; and by the latter to the plaintiffs, who are bankers in London. The first of the set of bills was transmitted, with the first special indorsement only, to the defendants, to procure acceptance: and they accordingly presented it for acceptance to Penn & Hanbury, who refused; whereupon the defendants caused a protest to be duly made for non-acceptance. The second of the set of bills was afterwards transmitted, indorsed so as to pass the property of Greffuhle, Freres & Co., with a reference upon the face of the bill to the defendants in the case of need. Greffuhle, Freres & Co. applied to the defendants for the first bill, and to know if it had been accepted: upon which the defendants delivered the first bill to them with the following acceptance by themselves: "accepted under protest for the honor of the first indorsers." The bill became due on the 3d of December, 1810, but was not presented to the drawees, Penn & Hanbury, for payment; nor was it proved to have been protested for non-payment. The defendants refused to pay the bill, in consequence of orders from the first indorsers. If the plaintiffs were entitled to recover, the verdict was to stand; if not, a non-suit was to be entered. This case was argued in 1811, and the court reserved it for further consideration.

Ld. ELLENBOROUGH, Ch. J., delivered the judgment.

This was an action founded upon a set of bills of exchange for 8001., accepted by the defendants for the honor of the first indorsers. The set was drawn by Samuel Hanbury at Hamburgh, 23d July, 1810, upon Penn & Hanbury of London, and was payable to Quevremont Balleydier & Co., at 130 days after date. The first of the set was transmitted to the defendants, that they might procure acceptance, but Penn & Hanbury refused to accept, and the defendants caused it to be protested for non-acceptance. The second of the set was indorsed to Greffuhle, Freres & Co.; they applied it to the defendants for the first, and the defendants delivered to them the first, accepted by them