T. B. Marshall & Brother v. Clary

McCay, Judge. 1. Whilst this case presents strong grounds for relief, based upon the failure of the Court to grant the continuance, yet we should hesitate to control the discretion of the Court, under the circumstances, so much more within his means of forming a correct opinion than ours. 2. We do not, however, think the case went to the jury fairly for the plaintiff. Assuming all that is contended for, to-wit: that the payments, entered upon the draft by the book-keeper of the plaintiffs, amounted to a waiver of formal acceptance, (and, if he was then acting as the agent of the plaintiffs, we incline to think this sufficient,) yet, according to the defendant’s own evidence, the acceptance was only conditional on the acceptor getting funds of the drawer in hand. Tim burden of proof was, therefore, emphatically upon the holder of the draft, to show that funds had come in hand. We do not think the stated account between the plaintiff and the drawer proves this. True, in that account there is a charge of $500 00, 8th April, against the drawer, of cash. But this does not prove the payment to have been of the drawer’s funds. It may have been an advance to him, or a loan. Indeed, the nature of the dealings, as shown by the account itself, makes this the probable truth of the case. The drawer of the bill was a lumberman, the plaintiffs his commission merchants. They sold him corn, paid his freight, and advanced to him various sums on his consignments of lumber. When he was in their debt, or they 514 in his, does not appear. During the year he sent to them various amounts of lumber, which they sold. The account does not show when the sales took place. He, the lumberman, was not in funds with the plaintiffs until the lumber was sold in quantity to satisfy the charges against him, and leave a balance. The account does not show when the lumber was sold. The $500 00 may have been, and probably was, an advance. At any rate, the simple fact that the plaintiffs paid or charged to the drawer $500 00 does not prove that, at that time, they had funds of his" on hand ; and we think the Court erred in charging the jury, on the assumption that there was proof, that, at the time of this charge, plaintiffs had in hand $500 00 of the money of the drawer. On this ground we reverse the judgment of the Court refusing a new trial.