Edson v. Fuller

Woods, J. It is alleged, that the proofs offered in support of the declaration in this case, were insufficient for that purpose. It is contended that no presentment, or acceptance of the order of Cleasby to pay the note to the plaintiff, is shown. We will first inquire whether there is sufficient proof of acceptance of the order; for if it was accepted, that would preclude all doubt of a sufficient presentment of it, for that purpose. Eor the acceptance would be plenary proof of a proper presentment. If an acceptance, which is the object of a presentment for acceptance, was effected, nothing more certainly could be requisite to show a sufficient presentment. — 187 — Does the proof reported show an acceptance ? Whether it amounts to an acceptance or not, is a question of law, upon the facts found and reported. Sproat v. Matthews, 1 Term. Rep. 182. The case finds & parol promise to “ settle ” the note, which the defendant was requested, in the order, to pay to the plaintiff. Was that a sufficient acceptance of the order? A valid acceptance may he in writing on the hill itself, or on another paper, (McEvers v. Mason, 10 Johns. 207,) or it may be verbal. Chitty on Bills, 815. Lumley v. Palmer, 2 Strange, 1000, was an action against an acceptor of a bill, and the acceptance appeared to be by parol only. Lord Hardwielce, C. J., ruled it to be sufficient, being good at common law and not affected by the Statute 3 and 4 Ann, chap. 9, §§ 5, 8. A similar ruling was afterwards, on argument before the Court of Common Pleas, adopted and approved by the decision of that court. Rex v. Maggott, (7 Geo. II.) cited in Chitty on Bills, 316, note (b). In Julian v. Shobrooke, 2 Wilson, 9, Lord Hardwiclce’s decision before cited, is referred to and approved. And in Powell v. Mounier, 1 Atk. 613, Lord Hardwicke says, that “ a promise by parol, to honor a bill, is an acceptance.” In Pillans v. Mierop, 3 Burr. 1662, Mr. Justice Wilmot says, “ an acceptance for the honor of the drawer shall bind the acceptor: so shall a verbal acceptance.” The same principal was expressly recognized in Sproat v. Matthews, 1 Term. Rep. 182. Mr. Justice Willes, in that case, says, “ though formerly it was held necessary that an acceptance should be in writing, yet of late years a parol acceptance has been deemed sufficient.” In Clarke v. Cock, 4 East, 72, Lawrence, J., says, “It would have been much better doctrine, if it had been originally determined, that nothing else should amount to an acceptance, than a written acceptance on the bill itself. But it is now too late to revert to that, it having been determined by many cases, that an acceptance may be by parol.” Le Blanc, J., (in the same case,) says, “ From Lord Hardwicke’s time to the present, it has been understood, that a parol engagement to accept, is an acceptance.” — 188 — In Ward v. Allen, 2 Met. 53, where a bill was read to the defendant and laid down before him, and he said it should be paid, it was holden to be a good acceptance. Where a bill had been presented for acceptance, and it had been refused, and the bill had been returned, the promise of the drawee made to the indorsee, who had presented the bill, that, if he wrnuld obtain the bill he would pay it, was held to be a valid and binding acceptance. Grant v. Shaw, 16 Mass. 341. In New York, before the revision of their statutes, it was well settled, that a parol acceptance of a bill already drawn was valid. Ontario Bank v. Worthington, 12 Wendell, 594. So, also, that apromise to accept a bill already drawn, was valid and binding, and amounted to an actual acceptance. Bank of Michigan v. Ely, 17 Wendell, 508. It would seem, however, that a parol promise by a debtor to a creditor, to accept a non-existing bill, will not, in point of law, amount to an acceptance of the bill when drawn. Johnson v. Collings, 1 East, 98 ; McEvers v. Mason, 10 Johns. 207 ; Ontario Bank v. Worthington, 12 Wendell, 593 ; Chitty on Bills, 9th ed., 313, note, 1. It would seem, also, to be well settled, that a promise to pay an existing bill by the drawee, is an acceptance, or, in law, amounts to an acceptance. Cox v. Coleman, (6 Geo. II.) cited in Chitty on Bills, 316, note, was thus: a foreign bill drawn on the defendant, was pro- ' tested for non-acceptance, and returned, and afterwards the defendant told the plaintiff, “ if the bill comes back, I will pay it,” and this was held to be a good acceptance. In Clarke v. Cock, 4 East, 72, Lawrence, J., says, “ what is an acceptance but an engagement to pay the bill when due ? ” In Wynne v. Baikes, 5 East, 514, Lord Ellenborough, C. J., delivered the opinion of the court. The action was by the indorsees of a bill against the drawees, charging them as acceptors. The language of the drawees, relied upon as an acceptance, was thus: “ Our prospect of security on the Chesapeake is so much improved, that we shall accept, or certainly pay all the bills which have hitherto appeared.” This bill had been presented, — 189 — and its acceptance refused. Lord Mllenborough remarks thus upon the case: “ The first question is, whether this promise is an acceptance. A promise to accept an existing bill is an acceptance. A promise to pay it, is also an acceptance. A promise, therefore, to do one or the other, i. e., to accept, or certainly pay, cannot be less than an acceptance.” Mr. Chitty, (Chitty on Bills, 307,) says, “ acceptance may be defined to be the act by which the drawee evinces his consent to comply with, and be bound by the request contained in the bill of exchange directed to him, or in other words, it is an engagement to pay the bill when due.” But does the evidence in this case show a promise on the part of the defendant to pay the order, or, what is the same thing, the amount of the note to the plaintiff? Is the promise “ to settle,” equivalent to a promise to pay ? Franklin v. March, 6 N. H. Rep. 364, was an action upon a promissory note. The note declared on was as follows, namely, “ Good to Robert Cochrane or order, for thirty dollars, borrowed money.” The court in that case said, that, “ Good to R. C. or order, is equivalent to a promise to pay R. C. or order.” And the instrument declared on, was held to be a negotiable promissory note. In Morris v. Lee, Ld. Raymond, 1396, the plaintiff declared as indorsee of a promissory note in these words: “ I promise to account with I. S. or order, for fifty pounds, value received by me.” The court said, “ there are no precise words necessary to be used in a note or bill. By receiving the value, the defendant becomes a debtor, and when he promises to be accountable to A. or order, it is the same thing as a promise to pay A., and it would be an odd construction to expound the word accountable, to give an account, when there may be several indorsees.” In Cashborne v. Button, Selwyn’s N. P., 363, cited in Chitty on Bills, 148, note a, the words of the instrument declared on were, “ I do acknowledge myself to be indebted to A. in £ —, to be paid on demand, for value received.” On demurrer to the declaration, the court held that this was a good note within the — 190 — statute, the words “ to he paid” amounting to a promise to pay, observing that the same words in a lease, would amount to- a covenant to pay rent. In Clarke v. Cock, already cited, Lawrence, J., in giving a construction to the language of a letter written by the drawee to the drawer of a bill, says, “ The only question then, is, whether a • letter in which he assures him that the bills will meet with due honor from him, the drawee, is not an engagement to pay the bills when due; of which there can be no doubt.” In the case before us, it appears that the defendant, after being requested first to pay the note, and then to put it into another shape, took the note, and said, he should have some money in a few days, and that it should make no difference about the note, and he would then settle it, and handed the note back to the plaintiff. The engagement of the defendant that he would “ then settle it,” we regard as equivalent to a direct promise to pay it. He could have intended nothing else. He was going to have the money in a few days, and “he would then settle” the note.’ It does not appear that any thing remained to be done in regard to the note but to pay the balance'due upon it. There was no controversy about the amount, respecting which a settlement is shown to have been necessary, nor in regard to the plaintiff’s title to the contents of the note. ■ And the term “ settle,” used on the occasion, could have had no imaginable meaning or force, that occurs to us, unless it was intended as a promise to pay; and we think it clear that such must have been the intention, and understanding of the parties at the time. Upon the whole, we think it quite clear that the evidence reported shows a due presentment and acceptance of the order declared on, and that the allegations in these particulars are made out upon competent and sufficient proofs. Here was a distinct and unequivocal parol promise to pay the the order, and that, upon the authorities, amounts to an acceptance, and an acceptance implies a sufficient presentment for that purpose. Whether the verdict might not be sustained upon another ground presented by the case, it is not now necessary to determine. — 191 — If other grounds failed, it might deserve consideration, whether a due and sufficient assignment of the note to the plaintiff by Oleasby, and a sufficient promise on the part of the defendant to pay the same to him, are not alleged and proved, to entitle the plaintiff to a judgment on the verdict. It is well settled, that an assignment of a chose in action, vests in the assignee an equitable interest, and that such equitable interest is a sufficient consideration to sustain an express promise. Currier v. Hodgdon, 3 N. H. Rep. 82; Howes v. Saunders, Cowper, 290 ; Wiggin v. Damrall, 4 N. H. Rep. 75 ; Crocker v. Whitney, 10 Mass. 316 ; Morse v. Bellows, 7 N. H. Rep. 561; Skinner v. Somes, 14 Mass. 107 ; Fenner v. Mears, 2 Wm. Black. 1269. But we express no opinion upon this point, the verdict being well sustained, upon the view already considered. Judgment on the verdict