Smith v. Clark & Whiting

Wright, J. Plaintiff assigns for error, the admission of certain testimony, and the giving and modification of certain instructions. I. Prom the obscure record before us, it seems that plaintiff relied upon an oral, and not a written, acceptance of the drafts by the defendants. Defendants proposed to prove, against plaintiff’s objection, and did prove, that it was their custom in accepting drafts to always do so in writing, and to charge the same to the drawer and credit the same to the drawee on their books. Appellant insists that this testimony was improper, as tending to establish a custom to bind him, without knowledge on his part of its existence. [34] Suppose it was offered, however, for the purpose of throwing light upon the question, whether there was or was not an acceptance as claimed by plaintiff? That it would be pertinent and justly be entitled to weight for this purpose, we entertain no doubt. And being proper for one purpose, the •court did not err in its reception, however improper it'might have been for another. II. Without referring to them in detail, we state generally that we see no fair ground of objection to the modifications annexed to the instructions asked by plaintiff. The first and second instructions given at the request of defendants, however, we think are erroneous, and for this error the case must be reversed. These instructions are: 1. The plaintiff must rely upon his statement of cause of action as set forth in his original notice, which claims to recover under an express acceptance and agreement to pay three, checks, which are diseribed therein. 2. The plaintiff then can only recover on proof of such acceptance and agreement of defendants to pay said checks. We do not understand from the statement of the cause of action by plaintiff in his original notice, that he relies upon an express promise or acceptance. Any proof which would establish the fact that there was an acceptance or agreement to pay the checks, whether by implication, or from the use of express words, would be sufficient. It is as if plaintiff, under the common counts, had sought to recover for work and labor done or goods sold and delivered. While in such counts he avers a promise to pay, he recovers without proof of an express promise, if he makes such proof as that the jury may conclude an implied one. So here, if defendants took the drafts into their possession and under their control for a great length of time;' or if they by their acts gave credit to these drafts; or so conducted themselves in reference to them, as to induce plaintiff to conclude that they had accepted them, or to prevent his protesting them; from these and many other circumstances, an acceptance, or [35] promise to pay the drafts, might be implied. And being thus a promise, raised by legal implication, would be as valid and binding as though ever so express. If plaintiff had counted upon an express, unconditional undertaking, he could not prove a conditional one. But when he declares generally upon an acceptance or promise to pay, he need not prove that it was express. If from the facts established the law implies the promise or acceptance, it is sufficient. Judgment reversed.