Meyer v. Beardsley

Chief Justice. Where the drawee of a bill of exchange writes upon the bill the word accepted, or any words of equivalent import, and signs it, it is a response to the request contained in the bill that he will pay the money mentioned in it, and requested to be paid, as therein directed. The language of the bill and the acceptance are but parts of an entire contract in writing, all the terms of which are expressed in writing with just as much certainty as if the acceptor was the maker of a note for the amount. The responsibilities of the acceptor are like that of the maker of a note — he is treated as the primary debtor. . The rule excluding parol evidence tending to vary the nature of the contract, and convert an absolute into a conditional contract, applies in full force to an unqualified acceptance in writing. This acceptance is an absolute contract in words to páy according to the tenor of the bill: it is not a contract implied by the law as the result of a certain act of the party, as an — 239 — endorsement of a note or bill; sucli an endorsement is, until filled up, no contract in writing, and cannot be recovered upon. Johnson v. Martinas, 4 Halst. 144; Watkins v. Kirkpatrick, 2 Dutcher 85; Susquehanna Bridge and, Bank Company v. Evans, 4 Washington’s C. C. 480. But none of the cases cited support the position, that the •express engagement of the party to a bill or note reduced to writing may be varied by a contemporaneous parol agreement, showing a contract of a different legal import.. 1 Mee. & Weis. 374; Adams v. Wordley; Heaverin v. Donnell, 7 Smedes & Mar. 244; 1 Pars. Notes and Bills 201; Spring v. Lovett, 11 Pick. 416 ; Hanson v. Stetson, 5 Pick. 506; Goodwin v. McCoy, 13 Ala. 261; Hoare v. Graham, 3 Camp. 57. At one time, in England, it seems to have been considered an open question whether an unqualified acceptance in writing might not be shown by parol to have been qualified. Bayley on Bills, c. 6, § 1. But I think the case of Adams v. Wordley, already cited, must be regarded as settling that question there, and I am not able to distinguish such an acceptance from a promissory note, upon which the law must be regarded as well settled upon this point, in addition to the cases already cited. Ridout v. Bristow, 1 Tyrw. 84; Farnham v. Ingham, 5 Ver. 114; Woodbridge v. Spooner, 3 B. & Ald. 223, may be referred to. In the present case, the bill before acceptance was drawn by one Sims, to the order of Charles Beardsley & Brothers, of whom plaintiff was one, and taken by them on account of a debt due from Lunt to them. The condition sought to be proved was, that the bill was not to be paid until Lunt showed a clear title to some property in St. Louis, upon which Lunt was to secure Meyer, the acceptor, for the advance. Meyer at first refused to accept, because the title was not shown to be clear, but afterwards did accept upon the condition stated. Lunt never showed a clear title, and Meyer refused to pay. The court below overruled the evidence, and did so rightly. It was insisted, in this court, that there was no considera — 240 — tion for the acceptance, and that therefore the plaintiff could: riot recover. The bill was not an accommodation bill between Lunt, the drawer, and Charles Beardsley & Brothers, the payees. It was given to them to pay a precedent debt. That is a sufficient consideration to support the' acceptance. Want or failure of consideration, if the latter be entire, may be a defencebetween the promisor and his immediate promisee, .and generally is.but the acceptor of a bill of exchange and the payee-do not stand in the position of immediate parties of promiser and promisee. The payee stands in the position of a stranger to the acceptor, as to the consideration of the bill. Robinson v. Reynolds, 2 Q. B. 196. It is of no consequence that the payee of a bill knew that there was no consideration for the acceptance, as between the-drawer and acceptor; if the payee or subsequent holder gave a bona fide consideration for it it is enough, and entitles him to recover. Smith v. Knox, 3 Esp. R. 46; Powells. Waters, 17 Johns. 176; Bank of Rutland v. Buck, 5 Wend. 66. There is no pretence of fraud in this case. The plaintiff is' an innocent holder for the precedent debt due the firm of which he was a member; that was a sufficient title to enable him to recover. The judgment should be affirmed. Ogden, J. The suit was brought by the endorsee against the acceptor of a bill of exchange. The bill is dated St. Louis, Missouri, March 12th, 1861, payable at two days’ sight, made by E. Lunt in favor of the order of Charles Beardsley & Brothers, for the payment of twelve hundred and forty dollars, and drawn upon C. Meyer, New Brunswick, N. J., who accepted the same generally in writing, on the 26th of April, 1861. It was endorsed by the payees over to William Beardsley, jun., the defendant in error. - The bill of exception was sealed, upon the refusal of the judge of the Circuit Court to admit the defendant below to prove, that an oral condition was connected with the written — 241 — ■acceptance, that it was not io be paid unless he, Meyer, should receive from the drawer satisfactory evidence that his property iu St. Louis was free and clear of encumbrances. The acceptance is absolute on its face, made upon a negotiable instrument, which, by the form of it, became payable iu five days from the date of the acceptance; and the defence insisted on was, that there was a contemporaneous verbal agreement that it should not be paid until the acceptor received certain documents from the drawer. The question presented to this court is, whether an acceptance of a negotiable instrument, absolute on its face, can be shown to be conditional by parol? It was not pretended, in argument, that such proof could be given in a suit brought by an endorsee who was a third party; but as the plaintiff below was one of the firm of Beardsley & Brothers, it was urged that he held the paper both for acceptance and collection. Can such an acceptance be qualified by parol in the hands of the payees? The great weight of authority is against the admissibility of the testimony, because its admission would contradict the terms of the written contract. The case of Adams v. Wordley, 1 M. & W. 374, was an action by the drawee against the acceptor. The defence set up was an agreement, not in writing, that the plaintiff stipulated not to call upon the defendant until an action against a third party was determined. The judges overruled the defence, upon the ground that, by a parol contemporaneous agreement, it sought to alter the absolute engagement entered into by the bill — declaring in their opinions, given seriatim, that it would be very dangerous to allow a party to alter, in such a manner, the absolute contract on the face of a bill of exchange, as it would be incorporating with a written contract, an incongruous parol condition, which is contrary to first principles. The subject is very fully discussed in Parsons on Notes and.Bills, where all the authorities cited on this argument are referred to, and very many others. The learned author states the law to be, that the maker of an absolute note cannot show against the payee, and a fortiori, — 242 — not against any endorser, an oral contemporaneous agreement, which makes the note payable only on a contingency. To illustrate: “It cannot be shown that an absolute acceptance-was' conditioned orally, upon the drawer’s finishing certain work undertaken for the drawee, or that a note was payable,, only in case the sale of a lot of land was suspended.” So also, that a mutual understanding of the parties, at the time a note was given, that if the value of the goods sold should turn out less than supposed, the note sho.uld be void, is nodefence. The doctrine maintained by the author referred to,, applies only to cases where the instrument is absolute and complete in its terms, and leaves nothing to be supplied by-oral evidence to make an entire and intelligible stipulation. A conditional acceptance, made to depend upon the happening of a future event, is in fact only a promise to accept absolutely when the contingency shall happen, and it is a different contract from an acceptance absolute on its face. The judgment below should be affirmed with costs. Vredenburgh, J. This was an action brought by Beardsley, as payee, against Meyer, as acceptor of a bill of exchange, in the following words : $1240. ‘ St. Louis, March 12th, 1861. Two days sight pay to the order of Charles Beardsley and-Bro’s twelve hundred and forty dollars value received, and charge the same to the account of ’ E. Lunt. The defendant, by way of defence, offered to prove by parol that at the time when the defendant wrote the words-“Excepted April 22, ’61. C. Meyer” across the face of the-bill, he annexed to the acceptance a condition that Lunt waste furnish him satisfactory evidence that his, Lunt’s, property in St. Louis was free from encumbrance before payment, which was never done. This offer the court overruled» It is now contended that the word “ Excepted,” written across the face of the bill, is equivocal, and not an absolute acceptance, and liable therefore to be qualified by parol testimony of what took place at the time. — 243 — The writing across the face of the bill is in red ink, and in the ordinary form of an acceptance, only the word is “ excepted,” instead of the ordinary one accepted. To constitute an acceptance, no special words are necessary. The signature alone of the drawee across the face of the bill will constitute a written acceptance. It is a presumption of law in this case, that the word “ excepted ” was used in the sense of accepted, and constitutes an absolute written acceptance, as much so as if the word accepted had itself been used. This being the legal result of the facts, it follows that no parol proof can be admitted to prove a conditional acceptance, as that would be contradicting the written evidence. 1 Parsons on Notes 201 and note W. Upon this question I fully concur in opinion with the Chief Justice.