turned to appellant, and what became of them does not appear from the record. The appellant claims that under the law of Nebraska these drafts must be deemed to have been accepted by Crandall, and that his estate is liable for the amount of the same.

This claim of appellant is based upon section 136 of what is known as the "Negotiable Instruments Law" of Nebraska. Comp. St. 1909, c. 41, art. 10. The section referred to reads as follows: "Where a drawee to whom a bill is delivered for acceptance destroys the same or refuses within twenty-four hours after such delivery or within such other period as the holder may allow to return the bill accepted or nonaccepted to the holder, he will be deemed to have accepted the same.

So far as the character of the drafts are concerned and their mode and purpose of delivery to Crandall, the burden of proof was upon appellant to show that they were negotiable and were delivered to Crandall for acceptance. We find it unnecessary to determine whether, under the facts appearing in the record, there was a destruction of the drafts, or a refusal to return the same accepted or nonaccepted, by · Crandall, within the meaning of section 136 herein quoted, for the reason that we are of the opinion that appellant failed to sustain the burden of proof imposed upon it in showing that the drafts were negotiable paper of the nature and kind that could be presented for acceptance, or that they were actually delivered to Crandall for acceptance. There were introduced in evidence, at the hearing before the referee, letters of transmittal which appellant claims were exactly similar to the letters used in transmitting the drafts in question to the Citizens' Bank. In these letters the following language is used: “We inclose the following for collection and returns in Omaha or Eastern exchange."

On the deposit slip issued to McWhorter by appellant, when the former was credited with the amount of the drafts by the appellant, is the following statement: "For drafts and checks credited or taken as collections, this bank acts only as agent, and assumes no liability on them, nor on drafts in payment for them."

The conclusion is irresistible that the appellant simply took the drafts for collection; that they were sight drafts, and were delivered to Crandall for payment, and not for acceptance. Presentment for payment and presentment for acceptance are two different acts, well known to the law of negotiable instruments. Presentment for payment cannot be made until the instrument presented for payment is due. Presentment for acceptance must be made before the instrument presented for acceptance is due.

We do not think that the appellant has brought itself within said section 136, herein quoted, in the particulars specified, and therefore the decree appealed from must be affirmed. And it is so ordered.

Hook, Circuit Judge, dissents.

BAILEY & CO. v. SOUTHWESTERN VENEER CO. et al.

(Supreme Court of Arkansas, 1916. 126 Ark. 257, 190 S. W. 430.) Action by Bailey & Co. against the Southwestern Veneer Company and another. From a judgment for defendants and an order overruling a motion for a new trial, plaintiff appeals. Reversed, and remanded for a new trial.

I. W. Saxon was indebted to appellant in the sum of $84.96, and on the 22d day of March, 1915, gave an order drawn on appellees for said: sum in payment of said indebtedness. This order was immediately. presented to appellees for acceptance. They did not accept it in writing, but stated to the appellant that the order was all right. Subsequently thereto, and within a few days, they confirmed the oral acceptance of the order over telephone. Later they refused to pay the order. On the 12th day of April thereafter appellant demanded a return of the order. Appellees stated that the order had been thrown in. the wastebasket and burned up. The return of the order was refused. The record fails to disclose why the order was thrown into the wastebasket and burned. No explanation appears in the record as to why appellees refused to pay it. The order was never paid by either I. W. Saxon or appellees.

This cause was tried in the circuit court on appeal, and, after the evidence was closed, the court gave the following peremptory instruction to the jury: "Gentlemen of the jury, under the law and testimony in this case, you are instructed to return a verdict for the defendant."

Thereupon the jury returned in open court the following verdict: "We, the jury, find for the defendants. V. O. Richey, Foreman." Appellant filed its motion for a new trial, which was overruled. Judgment was rendered on the verdict, and this cause was brought here on appeal.

HUMPHREYS, J. (after stating the facts as above). Section 126 of Act 81 of the Acts of Arkansas 1913, known as the law of negotiable instruments, defines a bill of exchange: "An unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer."

So far as disclosed in this record, the order in question in form and substance conforms to this definition and is an inland bill of exchange. By another section of the same act a written acceptance is necessary to bind the drawee. By still another section, if the drawee destroys the bill, he will be deemed to have accepted the same. Section 137, Act 81, Acts of Arkansas 1913.

The evidence in this case is undisputed that appellees destroyed this bill and are silent as to why they did so. No excuse is rendered by them

for not paying the order. Certainly it is not the privilege of a drawee to put the holder to sleep by an oral acceptance, then afterwards to destroy the order or bill of exchange and refuse to pay same without rendering any kind or character of explanation or excuse.

An accidental destruction of the bill could not amount to an acceptance, but a willful destruction of the bill would. Under all the circumstances in this case, we are of the opinion that the question of fact as to why the order was destroyed should have been submitted to the jury under proper instructions. Throwing the order in the wastebasket and permitting it to burn and refusing to pay it without explanation, after having orally accepted same, indicates a negligent and reckless manner of handling bills of exchange. If willful, then appellee herein became responsible.

For this error this case must be reversed, and remanded for a new trial. It is so ordered.

CHAPTER III

DELIVERY

PERRY v. BIGELOW.

(Supreme Judicial Court of Massachusetts, Worcester, 1880. 128 Mass. 129.) Contract on a promissory note for $5,000 signed by the defendant and indorsed by the payee. Trial in the superior court, before Dewey, J., who reported the case for the consideration of this court in substance as follows:

The defendant offered to show that, on January 11, 1877, the parties made an oral contract, by which the plaintiff was to let the defendant have $5,000 in money, less the interest for four months, and the defendant was to transfer to the plaintiff certain shares of the Scotia Lead Mining Company, and at the end of the four months the defendant was to have the right to have the stock back by paying the $5,000, and, if he did not do so, the plaintiff was to have the stock absolutely, and the defendant was not to pay the $5,000; that the parties were at the bankinghouse, of which the plaintiff was president, and he suggested that he would like to have it appear as a bank transaction, and accordingly went to the adjoining room, where was the cashier, and returned to the defendant with the note declared on; and that the same was then duly executed by the defendant and delivered to the plaintiff, who paid him $5,000, less four months' discount. It was agreed that the note was made payable to the cashier for the accommodation of the plaintiff, and that neither the bank nor the cashier had any interest therein.

The plaintiff contended that the above offer of proof was not competent. The judge so ruled; and directed a verdict for the plaintiff.1

AMES, J. The defendant's written contract was a negotiable promissory note, requiring him to pay a certain sum of money at a definite time. The evidence which he sought to introduce was for the purpose of showing that this written contract was not the real contract between the parties; that the note was merely a memorandum; and that certain certificates of stock described in the note as collateral security should operate as payment of the note at its maturity, if it were not previously paid. This evidence could not be received without doing violence to the rule that oral evidence cannot be admitted

1 The statement of facts is abridged.

to alter a written contract, or to annex to it a condition or defeasance not appearing in the contract itself. Adams v. Wilson, 12 Metc. 138, 45 Am. Dec. 240; St. Louis Ins. Co. v. Homer, 9 Metc. 39; Allen v. Furbish, 4 Gray, 504, 64 Am. Dec. 87. It is needless to multiply citations on so familiar a rule of evidence.

Judgment on the verdict.2

MCFARLAND v. SIKES.

(Supreme Court of Errors of Connecticut, 1886. 54 Conn. 250, 7 Atl. 408, 1 Am. St. Rep. 111.)

PARK, C. J. This is a suit upon a note of $300. On the trial in the court below the defendant offered evidence to prove, and claimed to have proved, that previously to the execution and delivery of the note the plaintiff, who was a grand juror of the town of Ellington, where the defendant resided, and was acting as the attorney of one Mary Quinn, accused the defendant of having made an assault upon the person of the said Mary, and threatened him with a criminal prosecution unless he settled with her for the injury; that the defendant thereupon admitted that he had done wrong in the matter, and offered $100 to settle it; that the plaintiff demanded $300, which the defendant was, unwilling to pay; that the defendant was without counsel, and asked to be allowed till the following Tuesday to consider the matter, and offered to give his note for $300, to be held by the plaintiff till then, and, if he did not then appear, to be held by the plaintiff as a settlement for the injury to the said Mary, but, if he should appear, to be returned to him to be canceled; that thereupon the plaintiff wrote the note in suit, which the defendant executed and delivered to the plaintiff, to be held by him upon the conditions stated; and that the defendant at the same time declared that he should appear and demand return of the note. The defendant also offered evidence that on the following Tuesday he appeared before the parties and demanded the return of the note, but that the plaintiff refused to surrender it.

With reference to this evidence the defendant requested the court to charge the jury "that if the note was delivered to the plaintiff with the understanding between him and the defendant that it was to be delivered up to the latter on his demand on the Tuesday following, and the defendant demanded its return on that day, the plaintiff cannot recover, and the verdict must be for the defendant." The court did not so charge the jury, but substantially that if they should find

2 See Norman v. Norman, 11 Ind. 288 (1858), where the defendant pleaded as an equitable defense that the note was intended as a memorandum only.