Ingle v. Davis

Simmons, Justice. Ingle sued Davis upon tbe following instrument in writing: “ September 30th, 1885. Mr. G. ~W. Davis: You. will please pay to the bearer $33.00, and oblige (Signed) “J. M. Smithy.” On the paper was tbe following credit: “ Cr. the within $2.30; the balance to be paid in January next.” On tbe trial before a jury, tbe plaintiff introduced said paper, with tbe entries thereon, and testified tbat be presented tbe order to Davis two or three times before be accepted it. He finally accepted it and paid $2.80 on it, and wrote on it himself accepting as to tbe balance unconditionally, but did not sign. Davis made no conditions whatever, but agreed to pay it in January following. Davis testified tbat be paid tbe $2.30 on tbe order, and only agreed to pay tbe balance on condition tbat be got some money from Bowen. On this state of facts, tbe jury rendered a verdict for tbe plaintiff. Tbe trial judge set tbe verdict aside, on tbe ground tbat tbe instrument was a bill of exchange, which must be signed by tbe party to be charged therewith; to which ruling tbe plaintiff excepted. Was tbe court right in this ruling? Our code, §2773, declares tbat “a bill of exchange is an order by one person, called tbe drawer or maker, to another called the drawee or acceptor, to pay money to another (who may be tbe drawer himself), called tbe payee, or bis order, or to tbe bearer. If tbe payee, or a bearer, tranfers tbe bill by indorsement, be then becomes [768] the indorser. If the drawer or drawee resides out of this State, it is then called a foreign bill of exchange.” Under this definition of our code, we think this instrument was a bill of exchange. It was an order of Smithy on Davis to pay the bearer $33.00. It is true there is no time mentioned in the writing for the payment of the money, hut under our code, §2791, “when no time is specified for the payment of a bill or order, it is due as soon as presented and accepted.” Section 1950 declares that, to make an acceptance of a bill of exchange binding upon the acceptor, the acceptance must be in writing, signed by the party to be charged -therewith, or some person by him lawfully authorized. The paper being a bill of exchange, and no acceptance thereof being signed by Davis, as required by the code, the court committed no error in holding that ho was not hound thereon. In this case, the payment by Davis of the $2.30 on the order was not such an acceptance of the paper as would make him liable for the balance. Judgment affirmed.