J. E. Smith & Co. v. Say

Beach, J. On the merits, the appellant’s claim is that his acceptance of the order was conditioned on the completion of the building by Newbern himself, and some of the corrections of the finding asked for, are involved in this branch of the case. On the face of the document the defendant’s claim cannot prevail. An accepted order of this kind is a nonnegotiable bill of exchange, the terms of which cannot be varied by parol after it has come into the hands of the payee. Smith *561 & Co. v. Hurlburt Co., 93 Conn. 391, 106 Atl. 319. In that case the defendant had accepted a similar order “payable when plastering is done,” and, in an action on the bill, pleaded as a special defense that the real agreement between plaintiff and defendantwas that the plastering should be done by one Pettine, the drawer of the bill; that Pettine had abandoned the work; that defendant had been obliged to finish it at its own cost, and that it owed Pettine nothing. We held that the condition above quoted was not ambiguous and could not be varied by parol by inserting the further qualification that the plastering should be done by the drawer of the bill. That is exactly what is proposed to be done in this case, by one of the corrections of the finding asked for, and it must be held that the condition relates, as the trial court finds, merely to the fact or time of the completion of the building. As to that, the court finds that the building is completed and has been rented and occupied since January, 1923; and it must also follow that there is no variance, for the-acceptance not only proves the allegation that “the defendant promised to pay” the plaintiff the sum named therein, but the defendant’s answer expressly admits that the order and acceptance is “the same matter referred to in paragraph 5 of the complaint as the defendant’s assumption to pay” the plaintiff’s lumber bm. No foundation is laid for making any correction of the finding which would have the effect of varying by parol the terms of the order and acceptance. As Newbern was building the house for his own account, and not for any third party, it does not appear that anybody was in a position to refuse to accept it when completed; and we think the finding, that the defendant bought in the property at the foreclosure sale and is now the owner of the building, evidences a *562 sufficient acceptance to satisfy that term of the bill. The word “accepted,” followed by the defendant’s signature, puts an end to the defense based on the statute of frauds. As to the rulings on evidence, the bill of exchange was admissible for reasons stated. The checks showing amounts advanced to Newbem by defendant, were not irrelevant in view of the allegation in the defendant’s answer that he owed Newbern nothing when the plaintiff demanded payment of its bill. For the same reason the testimony tending to show that the defendant in computing the amount of the mortgage debt included and was allowed some part, at least, of his liability under the bill of exchange, was not irrelevant; and the objection as to the incompetence of parol evidence on that point was cured by the subsequent admission of the record of the foreclosure proceedings. There is no error in either case. In this opinion the other judges concurred, except Maltbie, J., who dissented.