Thurman v. Van Brunt

By the Court, Harris, J. Upon the acceptance of a draft, the presumption of law is, that the drawee is in funds to pay^ it; accordingly, the drawer himself, if subsequently obliged to J pay the draft, may maintain an action against the acceptor founded upon this legal presumption. But when this presumption is ' rebutted by proof that the acceptance was made without funds, the presumption shifts to the other side, and the law raises a promise on the part of the drawer to put his drawee in funds. It will be presumed that where there are no funds, the one will not draw, nor the other accept, without such an agreement. This presumption, again, like the other, may be overcome by [411] proof that the acceptance was made upon some other agreement or understanding. [Albany General Term, December 5, 1853. Parker, Wright and Harris, Justices.] In this case, I think the defendant has succeeded in showing that the drafts were not only drawn by him for the accommodation of the payees, but that they were also accepted for their accommodation, and upon an express agreement between the payees and the acceptors that they were to be charged in account against the former, and that the latter was to look to them for payment. Such an arrangement relieves the defendant from the obligation which would otherwise be implied to indemnify his drawees against the payment of drafts drawn upon them without funds. (See Griffith v. Reed, 21 Wend. 502; Suydam v. Westfall, 4 Hill, 211; S. C. 2 Denio, 205.) In these cases, it has been held by the supreme court that, where one drawer had signed a draft as surety for his co-drawer, the acceptor could not maintain an action against him upon an implied promise to indemnify, when the acceptance had been made without funds. But the court for the correction of errors held, that, though as between themselves the relation of principal and surety might exist, yet, that, as between the drawers and acceptors, all the drawers were equally liable. The rule that the acceptor, before he can recover against the drawer, must show that he accepted and paid the bill for his accommodation, is not affected by this decision. It is only in the absence of any express agreement, that the law implies a promise of indemnity on the part of the drawer. The judgment must, therefore, be reversed, and a new trial granted, with costs to abide the event.