Johnson v. . Clark

Dwight, J. The statute upon which this action is based provides that “An unconditional promise, in writing, to accept a bill before it is drawn, shall be deemed an actual acceptance in favor *140 of every person who, upon tbe faith thereof, shall have received the bill for a valuable consideration.” The telegraphic authority to draw was an unconditional promise to accept, within the statute (Ulster Co. Bank v. McFarlan, 5 Hill, 432); and, on the authority of the same case, it is conceded that the promise covered only a draft at twenty days’ sight, and that the Defendants were not bound to accept Ingraham’s first draft, which was payable twenty days from date. So the Plaintiffs seem to have learned at some time subsequent to the dishonor of the first draft, and hence they procured the second one. In the meantime the Defendants wrote Ingraham the letter of the 22d of August, which the learned Judge at the Circuit held to be a revocation of the authority to draw. But it is clear that this letter can have had no effect upon the rights of the Plaintiffs. It never was communicated to them, and if it had been it raised no question of the Defendants’ liability to them, but contained, rather, an implied admission of such liability, and an appeal to Ingraham to protect them against it. Nor was it in the power of the Defendants to revoke .their promise after the Plaintiffs had parted with their money on the faith of it. The statute makes the promise to accept equivalent to an actual acceptance of the bill to be drawn, or, in other words, a constructive acceptance, which may be treated as if it were actually made; and as such, it can no more be revoked after money has been advanced on the faith of it than an actual acceptance written on the face of a bill. I think the liability of the Defendants was fixed when the Plaintiffs paid their money upon this constructive acceptance of the Defendants; and that when the first attempt to make a di’aft, to which that acceptance should apply, proved to be ineffectual, it was the right of the Plaintiffs to have another draft, which should be within the prescribed conditions. Under other circumstances it might well have been a question whether the time which the Plaintiffs suffered to elapse before the second draft was presented was a reasonable time within which to avail themselves of the promise to accept. *141 But in this case a draft had been drawn immediately, which was refused as not being within the authority to draw. Then, two months later, the Plaintiffs wrote the Defendants, informing them that they had paid their money for this draft upon the faith of the Defendants’ promise to accept it, and asking what their objection to it was. They had a right to wait for an answer to this letter before procuring another draft; and it is not for the Defendants to object that they waited too long. They were fully informed of the Plaintiffs’ claim upon them ; and I cannot see that they were prejudiced by the delay to enforce it. I have no difficulty in concluding that, under all the circumstances of this case, the Defendants’ promise to accept applied to the draft in suit. The fact that this draft was post-dated was not material. That date was an evident mistake; and as the draft was payable twenty days from sight, the time of payment was determined by the date of its presentation. The order of the General Term, reversing the judgment at the Circuit, should be affirmed, and under the Defendants’ stipulation judgment absolute should be rendered for the Plaintiffs. Affirmed. JOEL TIFFANY, State Reporter.