Bank of Rutland v. Woodruff & Marsden

Poland, Ch. J. The county court decided that the plaintiffs could not recover upon their special counts against the defend [92] ants as acceptors of the two bills ; but allowed them to recover on the money counts. This decision was doubtless made on the ground that the facts did not show a legal acceptance by the defendants, which there must be in order to make them liable as parties to the bills. If, however, the facts found by the county court, and placed upon the record, constitute a legal acceptance by the defendants, the judgment of the county court might be sustained on that ground, for it is well settled that the acceptor of a bill stands like the maker of a note, as the party apparently ultimately liable upon it, and may be made liable on the general counts. The judgment of the county court which we are to examine, is the judgment for the plaintiffs on the general counts. If that was right, on any ground that appears in the case, it should be affirmed. It is well settled in England that a parol acceptance of a bill is binding ; and it has been so decided in this state. Fisher v. Beckwith, 19 Vt. 31. But the defendants say, that if these bills were ever accepted by them, the acceptance was in New York, and that by the law of that State a parol acceptance is not good. It seems to us that upon the facts stated in the exceptions, it might be very justly claimed that the bills were accepted here. Where a party having in his possession a bill drawn upon himself, procures another to discount it, dr advance the money upon it to him, the law would from that fact imply an acceptance by kim, without any express language to that effect. The presumption upon the face of a bill of exchange in common form is, that the drawer has funds in the hands of the drawee, with which to make payment, and the bill directs him to pay the same to the holder. When, therefore, the drawee himself procures another to advance the money upon it, it is an implied admission on his part th tt he has the funds to meet it, and that it will be duly met at maturity. The defendants presented the bills to Smith, the plaintiff’s agent in New York, for discount, but he did not discount them, and the defendants left the bills with him to carry to the bank and get them discounted there ; and this was done by Smith. This, of course, is the same as if the defendants had in person taken the bills to the bank and received the money on them. [93] The defendants’ express promise to Smith, that the bills should be paid, was made in New York, and cannot be treated as an acceptance on account of the law oí that state. But, without regard to any acceptance by the defendants, we think the plaintiffs entitled to recover for the money advanced to the defendants. - The exceptions find that both the drawer and endorser of the bills were mere accommodation parties for the defendants, that this was communicated by the. defendants to Smith, the plaintiff’s agent, through whom they procured the plaintiffs to take the bills and advance the money thereon, and they expressly promised the bills should be paid at maturity. Although what was said by the defendants to Smith in New York, must be disregarded as a strict acceptance of the bills, still for all other purposes it is the same as if said in this state and to the plaintiffs in person. The defendants obtain this advance of money from the plaintiffs by informing them that they are the parties who have the benefit of the money ; that it belongs to ihem to repay it, and at the same time promise they will pay it, and at the same time deliver over the bills, informing the plaintiffs’ agent that all parties upon it are mere sureties for them. It is impossible for us to see any ground of objection to allowing the plaintiffs to directly maintain an action to recover back the money. The general rule that a party to a negotiable instrument, who tiansfers it and receives pay for it, is only liable on the instrument itself, is well enough settled, and if he do not become a party by endorsement, that he is under no liability at all. But here the defendants were not liable upon this bill at all, unless what they did amounted to an acceptance by them ; they [received the money and promised to repay it when the bill fell 'due. It looks much like a loan of money, and a delivery of the bills as collateral security for its payment. There is something very odd in the idea of a party selling an order or bill drawn on himself receiving the money upon it, and then escaping all liability whatever by refusing to honor the paper when presented. Such refusal is a direct fraud upon the party advancing the money. It is claimed, too, that if the plaintiffs held these bills as collateral security for the money merely, they should have offered to surrender them before sueing for the money ; that they [94] cannot pursue' their remedy directly for the money, and hold the bills at the same time. But it is a new doctrine to us, that a creditor holding collateral securities for a debt, cannot enforce his debt without first surrendering his securities. He is entitled to hold them till he gets his pay ; then they belong to the debtor. The cases where a creditor has taken out security in place of another, but has a right to return that and resort to his original demand, have no application to the present case. Judgment affirmed.