Colorado National Bank v. Boettcher

Beck, J. The verdict in this case appears to have been directed for the plaintiff, Boettcher, upon the view of the law taken by the district judge, that the holder of a check drawn against funds can maintain an action in his own name against the drawee who refuses payment, regardless of the question of acceptance. This is a question upon which courts and law writers are, to some extent, divided, and much learning has been expended in the discussion of the opposing views taken. Each is supported by arguments of great force, and did we not, from a careful review of all the authorities, deem the question practically settled against the right of action, we should consider it a close and serious question. But every conceivable phase of' the question has been discussed; every objection to the rule denying the right of action has been duly considered, and the rule having been adopted and followed by courts of the highest authority upon questions of commercial law, that a right of action does not exist where there has been no acceptance or promise to pay, we do not hestitate to accord to the adjudication the force of an established precedent. The subject has been so exhaustively considered by these authorities, that it is only necessary for us to cite them in support of the rule. Bank of Republic v. Millard, 10 Wallace, 152; First National Bank v. Whitman, 4 Otto, 343; Carl v. National Security Bank, 107 Mass. 45; Ætna N. B. v. Fourth N. B. 46 N. Y. 82; Case v. Henderson, 23 La. Ann. 49; Moses v. Franklin Bank, 34 Md. 580. Other authorities are referred to in the cases cited. But counsel for appellee rely mainly for an affirmance of the judgment, upon the proposition that the evidence shows an acceptance on the part of the bank. If this be true, then all the authorities are agreed that the check-holder may maintain his action in his own name against the drawee. It is not pretended that there was an express acceptance, but it is insisted that the conduct of the officers of [190] the bank was such as to amount to an implied or conditional acceptance. Reference is made to 1 Daniels Neg. Inst. § 499, where it is said that “ keeping a bill a considerable length of time without returning an answer, may, under some circumstances, be considered an acceptance.” The doctrine is qualified in the text as follows: “Especially if the drawee be informed that the delay will be so considered, and there be an inference from the language of the drawee that he intended an acceptance. These cases have been decided itpon special circumstances, and as a general rule, the mere detention for an unreasonable time is not considered as amounting to an acceptance.” To warrant the inference of acceptance from conduct, it would seem that the cii’cumstances must clearly indicate such an intention on part of the drawee. Thus, if he»be informed that a detention of the check or .bill will be so construed, and he thereafter detain it, an intention to be bound as acceptor is implied. In the case of Jeune v. Ward, 1 B. & Ald. 653, the bill was left for acceptance May 29, and retained until the 9th day of J uly, a period of forty-one days, when the drawee destroyed it. He had previously refused to accept it, but the case does not disclose the time of refusal. Lord Ellenborough was of opinion that having detained the bill an unreasonable length of time before certifying his refusal to accept, he should be held liable. The other judges were of different opinions, however. They considered that the bill having been left with the drawee for acceptance, and not sent by letter, it was the duty of the party leaving it to call for it and inquire whether it was accepted, and not the duty of the drawee to send it back; also, that having refused to accept before destroying the bill, the act of destroying could not be construed as an act of acceptance. In Mason v. Barff, 2 B. & Ald. 26, the bill was sent to the drawee by letter, with a request to accept and return. It was detained ten days, and at this time the drawee notified the pay [191] ees that it was not accepted, because the carrier’s receipt for the wool against which it was drawn had not been received, and offered to retuxm it. He likewise stated that the bill was retained by request of the drawers, to hold it until their in. voice was received. No answer being received from the payees, it was held sixteen days longer and then returned. A recovery was insisted upon on the groxxnd that the bill had been detained an unreasonable length of time, and that the detention had been at the request of the drawers and without the consent of the payees. Held, that the plaintiff could not recover. The circumstances showed that thei’e was no intention to accept until the invoice or cai’rier’s receipt was received, and the condition never having been satisfied, no liability was incurred. In Harvey v. Martin, 1 Camp. 425, the bill was sent to the drawee with request to accept and send it to the payee. Two weeks afterwards, the request not having been complied with, the drawer again wrote the drawee, asking him to accept and retxirn the bill, adding that detention would be considered as equivalent to acceptance. Some time after this the drawee Avrote that he had intended to accept the bill, but now refused, as he had no funds of the drawer in his hands. Held, the drawee was liable as acceptor. In Koch v. Howell, 6 Watts & Serg. 350, it was held that the retention of an order until the trial was not conclusive evidence of acceptance, but a question of fact for the jury, since the retention was subject to explanation. The doctrine of all the authorities cited is that mere detention does not constitute an implied acceptance, and that a conditional acceptance is not enforceable until complete fulfillment of the condition. See Byles on Bills, 191-193; Parsons on Notes and Bills, 284; Edwards on Bills and Px’oxn. Notes, 418; Liggett v. Weed, 7 Kansas, 273. The longest detention in the case at bar was for the space of six days. The drawees Avere not notified that a detention would be considered equivalent to acceptance. There was no promise [192] to pay any of the checks. Until the day on which they were returned, there was not, at any time, sufficient funds on deposit to the credit of the drawers to pay the two checks on which judgment was entered. The act of returning the checks to the Union Bank of Greeley cannot be construed as an intention to accept, for no such intention is indicated, either by the act itself or as taken in connection with the letter of the cashier accompanying the checks; and as regards the explanation of the detention, given by the president of the bank as a witness upon the trial, viz: that he “ supposed they would put up money to meet the whole of them,” we cannot assent to the proposition that it is equivalent to a promise previously made, to pay “ when in funds.” If the language of the president be formulated into a promise, it would be a promise to pay on condition that the drawers furnished sufficient funds to pay all three of the checks; and since the requisite deposit was never made, the condition was not fulfilled and no liability was incurred. Liggett v. Weed, supra; Wintermute v. Post, 4 Zabriskie, 420. We are of opinion that the judgment cannot be sustained on the ground of an implied promise on the present testimony, either upon the authority cited or upon principle. As further testimony affecting the conduct of the appellee may be produced upon another trial, the judgment will be reversed and the cause remanded. „ Reversed.