Henry v. Hazen

By the Court, Sebastian, J. The demurrer to the first count ire the declaration was well taken, and properly adjudged by the court to be good. The instrument set out in that count, and declared on as a “bill of exchange,” was not such within the meaning of our statutes on that subject, or by the rules of the law merchant. The payment of the sum of money for which it was drawn, depended upon a contingency which might never happen; and in such cases, when the payment depends upon any contingency as to the event, fund, or the parties by, or to whom, it is to be made, the character of the instrument as a bill of exchange is destroyed. Chit. on Bills, 154. Roberts vs. Peake, 1 Burr. 323. Blevins vs. Blevins, 4 Ark. Rep. 441. That no action will lie upon a bill or draft as such, unless strictly so by the common law, was decided by this court during the present term, in Hawkins vs. Watkins. Such an instrument, although not valid as creating any legal liability against the parties to it, is yet competent written evidence of the acceptor’s liability, under the count for money had and received, in connection with other proof to establish the happening of the contingency, upon which the acceptor was to pay. It was a part of the plaintiff’s case, and was properly read to the jury. The issue was, whether the defendant had received money which, in equity and good conscience, belonged to the plaintiff, and any evidence to prove the receipt of the money by defendant, was competent. For this reason the statement of the account between Hutchison and Razen, in Hazen’s own hand-writing, was competent evidence, and ought to have gone to the jury, with the declarations of defendant, which were introduced by plaintiff as admissions, and the whole have been considered together for .what it was worth. The objection was only to the sufficiency of the proof, and not to its competency. It was a'good acknowledgment o'f the receipt of the money, unless contradicted or explained. Had it gone to the jury, the plaintiff might have disproved the declarations relative to it by defendant, by other testimony; or the jury might have believed the statement in writing, and disbelieved his explanation or verbal contradiction of it. In rejecting this testimony, the circuit court therefore erred. The judgment of the court must therefore fee reversed, and the cause remanded, with instructions to grant a mew trial, and proceed therein according to law.