Case v. Burt

Campbell J. On the second of November a vessel called the Jesse took on board a cargo of lumber for" plaintiff. On the 4th Gilbert, the managing man of the defendants, presented [84] a draft to plaintiff for this cargo, and plaintiff told him to forward it to Norwalk, as he had done the rest. Gilbert said “very well” and deposited it in bank. Herman Gelpeke, who was President of the company, and also an active manager, subsequently, on the same day, directed Gilbert to get the draft from the bank, for the purpose of getting a protest on it. Gilbert did so and procured John J. Wheeler, a notary, to present it to plaintiff that evening after business hours at his hotel. Plaintiff informed the notary that he was not certain as to the correctness of the amount of the draft, and desired to examine the shipping bills, which he could do in the morning, and would then accept the bill if correct. The notary agreed to call again in the morning for that purpose. But that evening Gilbert and Gelpeke went to him, and induced him to protest the draft for non-acceptance, and return it to them. The next day plaintiff was notified that no more lumber would be delivered to him on the contract, and although he made application, none was delivered to him until after November 16th, when defendants allege a new agreement was made, which plaintiff denies. Defendants alleged to plaintiff as a reason for refusal, the non-acceptance of this draft, and the alleged accumulation ■ of lumber on the docks previously, beyond the amount fixed by the contract. It appears that plaintiff neither refused nor intended to refuse acceptance of the draft of November 4th. The notary left him, promising to present the paper the next morning, when plaintiff would have had an opportunity of learning .whether the amount was correct. Where a drawee does not refuse, but merely requires time to examine his accounts he is entitled to twenty-four hours. Chitty on Bills, 306, 311. And here, the consent of the notary would preclude a protest until revoked by a new demand, even were there no such rule in existence. The defendants, therefore, in at once refusing to deliver more lumber, themselves broke their contract. [85] [Having examined tbe various questions of fact, and estimated tbe damages upon the evidence at $14,888.44, the opinion concludes as follows.] Tbe judgment below must be reversed, and a new judgment entered in tbis court in favor of plaintiff against defendants for tbis amount of damages, with costs of both courts. Tbe other Justices concurred.