Vanstrum v. Liljengren

DICKINSON, J. A recovery is sought against the defendant, upon~ acceptances by him of several inland bills of exchange, dr~w~i by other parties upon him, and in favor of the plaintiff as paye~ The acceptance of one of these bills consisted in the defendaii~Q~riting upon the bill and signing the words "payable the 15th day of May, 1883," the bill being dated May 5th, and no time of payment being named in it. The acceptance upon the other bills was expressed by the word "except" signed by the defendant. The writing in either form constituted an acceptance, although as to the one special acceptance it was qualified as to the time of payment. No other import can be given to such writings upon the instruments by the cirawee than that he thereby accepted the same, nor can there have been any other purpose in such writings than to signify his accept-. ance. f The defendant offered upon the trial t6 show, by oral evidence,. that there was no consideration for the bills between the drawers and the payee, and that the bills were given to the payee for the purpose of collection only, and hence that the plaintiff was not the real party in interest. There was no error in excluding this offer. By the drawing of the bills in favor of the plaintiff, and delivering the same to him, and by the acceptance by the drawee, the plaintiff acquired. the legal title to the bills and acceptances. More than this, by his acceptances the defendant obligated himself directly to the plaintiff to make payment to him, and upon that obligation this action is~ brought. Therefore the action was maintainable by the plaintiff,. notwithstanding the fact sought to be shown. City Bank v. Perkins, 29 N. Y. 554, (86 Am. Dec. 332;) Sheridan v. Mayor, 68 N. Y. 30; Hays v. Hathorn, 74 N. Y. 486-490; Shafer v. Bronenberg, 42 md. 89. A recovery by the plaintiff would protect the defendant from any claim of the drawers for the recovery of the funds drawn upon; and it did not concern the defendant to inq~iire into the purpose or-the consideration for the bills, as between the drawers and the payee,. unless, at least, he should go further, and show that he was not oh-ligated by hi~ acceptances, even in favor of the alleged real owner,~ the cirawor. )B~ accepting the bills, the defendant had admitted the~ [193] possession of funds of the drawer applicable to the payment of the same, and had assumed the absolute obligation of making such payment. • He became the principal debtor, as respects the holder of the accepted bills; and, unless the obligation which the acceptance imports be in some way disproved or overcome, it would be immaterial whether the payee originally acquired the bills for a valuable consideration or as a gift; and whether he, or the drawer himself, was the party beneficially interestedin the recovery. The offer to which we have referred went no further than has been stated, nor were the offers subsequently made sufficient to show a de-fence. These were presented apart from that before referred to, and in somewhat ambiguous terms. They may be fairly construed as offers to show a “failure of the consideration” (such is the language of the offers) for the acceptances, by proof that they were made upon the condition or consideration that the payee had paid, or would atones pay, an indebtedness of the acceptor to the drawers of these bills; and that the plaintiff had not made such payments, if the-acceptances were given in consideration of an agreement by the-payee to make such payment, his breach of that agreement would not constitute a failure of consideration for the acceptances, so long as he remained legally obligated by his promise. Spiller v. Westlake, 2 Barn. & Adol. 155; Trask v. Vinson, 20 Pick. 105; Chapman v. Eddy, 13 Vt. 205. There was therefore no error in rejecting such offers. Order affirmed.