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Rufus Gates versus Edwin Parker
Cutting, J. The defendant is sued as the acceptor of a draft, drawn on him by McNeil & Yose, on November 26, 1851, payable to the order of Charles Day, and by him endorsed to the plaintiff, and if he is legally liable in this action, it can only be by reason of his alleged acceptance.
It seems that the defendant, at the date of the draft, was interested as mortgagee in a bark, then or about to be launched, on which Day had a lien claim for a suit of sails; that the defendant sent Manson, his clerk, with his letter to McNeil & Yose, the builders and mortgagers of the bark, authorizing the former to confer with the latter respecting the claims on the bark, and the latter to draw on him for such sums as might be needful.
Under these circumstances Day presented his demand, and received from McNeil & Yose a drafton the defendant, pay able to the order of James W. Cox for the balance due him, who thereupon receipted his account.
This transaction was with the knowledge and consent of Manson, and being in accordance with the tenor of the letter, would render it obligatory on the defendant to accept the draft, and in legal contemplation it was accepted at its inception, and the defendant’s writing thereon to that effect would not have rendered the acceptance more obligatory on him. Both Manson and the letter had then fulfilled their respective missions, and Day’s claim for a valuable consideration had been discharged.
It would be the introduction of a new element into the commercial law, for this court now to decide, as contended for by the plaintiff’s counsel, that such draft could be substituted for another payable to the order of a different person, without the knowledge or consent of the defendant or his agent. We recognize the law as embraced in the decisions cited, but among them discover none, which in this particular, sustains the plaintiff’s proposition.
As to the draft in suit the defendant may truly say, non limo in foedera veni. According to the agreement of the parties, the plaintiff must become Nonsuit.