Thayer v. Peck

Mr. Justice Dickey delivered the opinion of the Court: The judgment of the Appellate Court was undoubtedly correct. Waiving the discussion of the question whether the draft in question is commercial paper, and the question whether it was admissible under the special count, it certainly was competent under the common counts as a simple common law contract, and there was evidence tending to show a valuable consideration, and that nothing remained to be performed by plaintiff under the contract. Whether that proof was sufficient, being a question of fact, is a question which can not be raised in this court. In fact the proof tends to show money paid out by plaintiff at defendant’s request, and that this draft was given as an attempt at payment; that defendant had no funds to draw against, and forbade the payment of the draft. Under such circumstances the plaintiff had lawful right to abandon the draft, and recover for the money advanced and interest. It is insisted that the finding is for more than was claimed in plaintiff’s affidavit of claim. It is sufficient to say that this is a question which was not submitted to the Appellate Court. As that was not assigned for error in that court, appellant can not be allowed to present that question here, when it was not presented there. The judgment of the Appellate Court must be affirmed. Judgment affirmed.