Sears v. Lawrence

Metcalf, J. The instrument in suit, being an order payable in lumber, is not a bill of exchange; and the plaintiff, by making the demand and giving the notice which would charge the drawer of such a bill, does not thereby entitle himself to maintain an action on this order. He may maintain an action against Swett, the acceptor, if there was a legal consideration for the acceptance. Possibly he may recover of the defendant on the original cause of action, in discharge of which he received the order. Of this, however, we express no opinion. That question would depend on extrinsic matter not now before the court. See Tucker v. Maxwell, 11 Mass. 143. An order for the payment of a certain sum in chattels does not legally import an undertaking by the drawer that the payee shall obtain the chattels, nor that the drawer will be answerable to him for the value of them on the drawee’s refusal to accept or to pay the order. The law and incidents of a bill of exchange do not attach to such an instrument. On the facts reported by the judge, the defendant’s promise, after the acceptor’s failure to deliver the lumber, that it should be delivered to the plaintiff in payment of the order, does not appear to have been made on any consideration that will support it; for it is not shown that the defendant was ever, as drawer, under any legal obligation to the plaintiff. For aught that is shown, the plaintiff may have taken the order on his own risk, relying wholly on Swett, the drawee; the contrary, as already stated, not being inferable from the order itself. If the defendant was not under any such obligation to the plaintiff, then the promise was to pay the debt of Swett, if Swett was answerable to the plaintiff, and so within the statute of frauds. See Edwards on Bills, 211; Atkinson v. Manks, 1 Cow. 691; May v. Lansdown, 6 J. J. Marsh. 170; Ford v. Adams, 2 Barb. 349 ; Gushee v. Eddy, 11 Gray, 502. The grounds on which the court decide the case render it needless to consider the question that was discussed as to demand and notice, or the objection as to the nonjoinder of the other drawers of the order, as defendants. Judgment for the defendant.