Platzer v. W. B. Norris & Co.

Ogden, J. This suit was brought in the District Court by the appellees against the appellant, upon an account for a bill of lumber, and an order given by appellant upon the house of Hoffman, Musick & Co., to pay the amount of the bill. The account is rendered in September, 1869, and the order entered at the bottom of the account is without date, as follows: “Messrs. Hoff- man, Musick & Co., please pay above bill.” Hoffman, Musick & Co., not paying the bill, and having become bankrupts, this suit .was instituted against the original debtor and the maker of the order. Judgment having been rendered against him, he has appealed. The only question raised in the assignment of errors, which need be noticed here, is in regard to the non-presentation of the order to Hoffman, Musick & Co. for payment, and the want of protest for non-payment and notice to the drawer. Our statute provides two modes for fixing the liability of the drawer and indorser of commercial or negotiable paper. The first is by protest, and the other is by bringing suit at the first term of the court, or at the second term, and by showing good cause for not bringing suit at the first term. And the holder has, in all cases, the choice of pursuing either or even both remedies. But the instrument here sued on is neither commercial paper, properly speaking — for it is without date and without a payee — nor is it a negotiable instrument. Hoffman, Musick & Co., were not bound to pay, and could not have been sued on the order, and certainly neither Platzer nor [11] any one else could have been held liable on the order if detached from the account. That order, therefore, can be regarded as but little more than an acknowledgment of the justness of the account; and we think it may be considered quite doubtful whether a protest or suit at the first term of the court was necessary in order to fix appellant’s liability. But if we regard the instrument in the most favorable light for appellant, and c.onsider it as a bill of exchange, then the holder would certainly have the right to bring suit, under the statute, instead of protesting it for non-payment (Art. 229, Pasch. Dig.); but he could not have sued Hoffman, Musick & Co., for they were not requested to accept, but to pay on demand, and they did neither. But it is also clearly established, that within about one month from the making of the order, Hoffman, Musick & Co. were notoriously insolvent, and were bankrupts ; and if they had accepted the order on the day of the execution, yet the holder need not have sued them after their bankruptcy, in order to fix the liability of the maker. (Insall v. Hobson, 16 Texas, 128.) His liability was fixed by the insolvency of the drawee, and he cannot now. complain that he was not sued as soon as he might have been. The diligence by bringing suit, as prescribed by the statute, in order to fix the liability of the maker, is a substitute for demand, protest and notice, as required by the law merchant. (Sydnor v. Gascoigne, 16 Texas, 456.) If, therefore, suit was brought against the maker at the first term, or if the drawer became notoriously insolvent before the first term, after the maturity of the draft, in either case the liability of the maker became absolutely fixed, and he has no right to complain of the laches of plaintiffs in prosecuting this claim against himself. Appellant claims that he has been damaged by the laches of appellees in prosecuting their claim ; but he has failed to [12] prove any damages, and under the circumstances we think it would be difficult to presume he has sustained any. There is no error in the judgment, and it is affirmed. Affirmed.