Jennison v. Parker

Manning J.: The court erred in charging the jury “ there was not sufficient evidence before them to take into consideration anything in relation to the draft,” and in withdrawing the evidence from the jury. It was argued there was no evidence of the clerk’s authority to receive the draft. Admitting this to' be so, there was evidence in plaintiff’s letter to defendants of the 26th September, tending to show a ratification by plaintiff of the clerk’s acts. They were not repudiated; and plaintiff placed his want of accountability on the ground that the draft was not paid when due, and that defendants had notice of its protest. His language is “ you know that it (the draft) was not paid when due, for you got a notice of its protest.” This letter, and plaintiff’s offer to return the draft on the trial, would have warranted the jury in finding a ratification of the acts of the clerk. And if the draft was received as collateral security for what defendants were owing plaintiff, to be applied when paid, and not before, it was [360] his duty to present it for payment on the day it became due, and to give notice of its non - payment to defendants, by whom it was indorsed. — Dayton v. Trull, 23 Wend. 345; Bridges v. Berry, 3 Taunt. 130; Edw. on Bills, 445, Had he credited defendants with it when it was received, it would not have been such a payment of their debt, pro tanto, as would have barred an action for the same amount on the account itself, on his showing- he had taken the necessary steps to charge defendants as indorsers, and offered to return the draft on the trial. Had he received it in payment, it would not have discharged the original liability of defendants, if it was not ptaid when due, unless there was an express agreement to that effect when it was taken, or plaintiff had lost his remedy on the draft against defendants as indorsers. It is therefore immaterial that defendants were not to be credited with it until it was paid. The same reason for notice of non -payment exists in both cases. In Lawrence v. Mc Calmont 2 How. 427, the notes were were not held as collateral security by McCalmont, Brothers & Co. as appears very clearly from the case. They were sought to be charged as agents for collection merely. The request to charge and the charge of the court made on the trial {pp. 448, 449), show]] this, as well as the language of Judge Story on this part of the case, in delivering the opinion of the court. He says “the notes having been left for collection only, with the agents of the London house, although indorsed by the Messrs. Lawrence, they do not fall within the strict rules of commercial law applicable to negotiable paper” (p. 454). He also'says, in speaking of Swift v. Tyson, 16 Pet. 1, “There the question was, not whether a person receiving a note as collateral security for an antecedent debt, was not bound to due diligence in its collection, otherwise he made it his own, which was not doubted; but ” &c., thereby clearly recognizing the liability of McCalmont, Brothers & Co. had the notes been [361] received by them as collateral security, and not as agents for collection merely. It may be said plaintiff’s letter was evidence for as well as against Mm: That is true, but it was for the jury to say what effect should be given to it. We think the court erred also in refusing to let defendant’s counsel read the draft as evidence to the jury. It was cumulative evidence only, but that was not a good reason for rejecting it. The judgment should be reversed, and a new trial be granted. Martin Ch. J., and Christiancy J., concurred.