Barnet v. Smith

Eastman, J. In the form in which the report of the re — 263 — feree has been transferred to this court, we must either dismiss it from our docket, or treat it as an agreed case. Our first inclination was to take the former course, the report appearing to be in some respects indefinite and uncertain, and not in such a situation as could be wished in order to be properly passed upon by the court. But as counsel have argued and submitted it to our consideration, we have endeavored to make a decision upon it. In so doing we have treated the matters stated by the referee as proved facts; this being the only way in which we could have any basis upon which to form an opinion. Indeed, the referee reports that he finds the facts to be as stated by him; and without deciding the case either for the one party or the other, he states the facts, leaving the law arising thereon to the court. And it was in this view, as we understand it, that the case was sent to this court for determination. The note had no legal connection with the settlement of the complaint between Fletcher and Hurlbutt, and therefore no question arises as to the legality of that settlement, or the power of Fletcher to discharge the prosecution. It was agreed between Fletcher and Hurlbutt that the complaint should be settled, and that all liability on account of the charge which it contained should be discharged. In consideration of the discharge Hurlbutt was to pay Fletcher fifty dollars in cash, and^ive a conditional note for fifty more. To enable Hurlbutt to raise the fifty dollars, Smith, the defendant, gave him his note for fifty-five dollars, payable to Hurlbutt or order, on time, with interest. What the consideration was, if any, that passed between Hurlbutt and Smith, does not appear; nor does the report disclose any contract between them. It was, however, a negotiable promissory note, payable on time, and, in the hands of a bona fide holder, for consideration, would be good as an accommodation note merely. Hurlbutt held the note, and Smith made no objections to its being passed to Burnside or to any one else. Nor do we find Smith objecting, at any — 264 — time, to anything that was done with the note, or giving notice to any one that it was without consideration. And the report shows that this defence is made more for the benefit of Hurlbutt than of Smith. The note being in the hands of .Hurlbutt, was sold and negotiated to Burnside for a valuable consideration. Burnside was in no way connected with the agreements and transactions between Hurlbutt and Fletcher, and was a bona fide purchaser of the note. He contracted to give fifty dollars for it, but instead of paying the money handed to Hurl-butt his cheek for that amount on the Lancaster Bank, where he had funds, and the check was paid. If*the check had not been paid, we are not prepared to say that the plaintiff could recover. It does not appear that Hurlbutt agreed to take the check in payment for the note ; and in the absence of such an agreement, the cheek would not be payment, unless Hurlbutt by holding it or by his laches, in not presenting it, should become chargeable with treating it as payment. A bank check is substantially the same as an inland bill of exchange; and, in general, is governed by the law applicable to bills of exchange and promissory notes. Until cashed, it is not payment of a pre-existing debt, any more than a promissory note is payment of such a debt, without an agreement to receive it as such. And a negotiable promissory note will not be a discharge of a pre-existing debt unless there be an express agreement to receive it as payment. Jaffrey v. Cornish, 10 N. H. Rep. 505; Smith v. Jones, 20 Wend. 192; Murray v. Judah, 6 Cow. 484; Glenn v. Noble, 1 Blackf. 104; Woods v. Schrceder, 4 Harr. & Johns. 276; People v. Hall, 4 Johns. 296; People v. Baker, 20 Wend. 602; Cromwell v. Lovett, 1 Hall 56; Hoar v. Clute, 15 Johns. 224; Gallager v. Roberts, 2 Wash. C. C. Rep. 191; Wright v. The First Crockery Ware Co., 1 N. H. Rep. 281; Elliott v. Sleeper, 2 N. H. Rep. 327; Tobey v. Barker, 5 Johns. 71; Hughes v. Wheeler, 8 Cow. 77; Camidge v. Allenby, 6 Barn. & Cres. — 265 — of intoxicating 373; Clark v. Mundal, 1 Salk. 124; 5 Term Rep. 513; 2 Esp. 159; 6 Term Rep. 52; 1 Ld. Raym. 928. Neither would the presentment and acceptance of the cheek at the bank amount to payment, nor be a value received for the note. The check being in the hands of Hurl-butt, and payable to him, was presented to the cashier, who pronounced it “ good.” This was competent evidence of an acceptance, if not indeed an acceptance itself, by the bank, which would bind them to pay the amount. At common law an acceptance of a check or bill of exchange maybe by parol. Clark v. Cock, 4 East 72; Lumley v. Palmer, 2 Strange 1000; Julian v. Shobrooke, 2 Wils. 9; Powell v. Mounier, 1 Atk. 613; Sproat v. Matthews, 1 Term Rep. 182; Pillans v. Mierop, 3 Burr. 1662; Leonard v. Mason, 1 Wend. 522; Wilson v. Clement, 3 Mass. Rep. 1; Williams v. Winens, 2 Green 339; McEvers v. Mason, 10 Johns. 207; Ontario Bank v. Worthington, 12 Wend. 593; Bank of Michigan v. Ely, 17 Wend. 508; Ward v. Alden, 2 Met. 53. By the act of 1 and 2, Geo. IV. ch. 78, it was provided that from and after the first day of August, 1821, no acceptance of any inland bill of exchange shall be sufficient to charge any person, unless such acceptance be in writing on such bill. And a similar provision has been incorporated into the Revised Statutes of New York. We have no statute of the kind in this State, and with us the rule remains as at common law; a valid acceptance of an order, check, or bill of exchange, may be by parol. Edson v. Fuller, 2 Foster’s Rep. 183. Whether the statement of the cashier, when Hurlbutt presented the check to him, “ that it was good,” was in law an acceptance of the check, is perhaps matter of some doubt. In general, as no formal act is required to constitute a simple contract, and any mode which demonstrates an intention "to become bound by it, will have an obligatory force upon the contracting party, so any act of a drawee or acceptor, which evinces a consent to comply with the re — 266 — quest of the drawer, will constitute an acceptance. Thus where the acceptance is in writing, the words, “ accepted,” “ seen,” “ presented,” written on the bill, or on any other paiper relating to the transaction, will amountto an acceptance. Chitty on Bills 174; Spear v. Pratt, 2 Hill 582. In Edson v. Fuller, 2 Foster’s Rep. 187, it is said that whether there has been an acceptance or not is a question of law upon the facts found; and Sproat v. Matthews, 1 Term Rep. 182, is cited as sustaining the position. Mr. Chitty (Chitty on Bills 171) lays down the same general proposition, and cites the same authority. This rule was substantially acted upon in Edson v. Fuller, where it was held that a promise “ to settle ” was equivalent to a promise “ to pay,” and amounted to an acceptance of the order. In Clark v. Cock, 4 East 72, 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.” And in Franklin v. March, 6 N. H. Rep. 364, where the action was upon a promissory note of the following tenor: (< Good to Robert Cochrane or order, for thirtydollars, borrowed money,” the court say that “ Good to R. C. or order, is equivalent to a promise to pay R. C. or order.” And the instrument was held to be a promissory note. See, also, Morris v. Lee, 1 Ld. Ray. 1396. Upon the doctrine of these authorities, it would seem that the presentment of this check to the cashier of the bank and his statement that it was “ good,” would amount in law to an acceptance. But, notwithstanding this transaction might amount to an acceptance, and might in law bind the bank to pay the check, yet the acceptance would not be payment; and unless the money were paid, Hurlbutt would not have received — 267 — a consideration for the note, and the note would not have legally passed to Burnside. But, as we view it, the check was paid. The discharge which had been agreed upon between Fletcher and Hurl-butt, and which was to form the consideration of the conditional note and money, was written and signed in the bank; and simultaneously Hurlbutt told Cossit, the cashier, to count out the money. This he did, and handed it to Fletcher, who had signed the discharge and delivered up the papers to Hurlbutt; and who afterwards signed another discharge more formal, if not more binding. Cossit had no interest in the matter. As cashier of the bank, he would have preferred to have retained the money, and certainly would not have paid it over to Fletcher had he not distinctly understood Hurlbutt so to direct. The check, then, was paid; paid by Hurlbutt’s direction, and Burnside became thereby the bona fide owner and holder of the note, for a good and valuable consideration. The statement of Hurlbutt that when he told Cossit to count out the money he did not direct him to pay it to Fletcher, but only to count it out, appears to us to be a mere after thought, made when he found that the discharge which had been signed was not satisfactory to his counsel, and when he was urging him to sign the new discharge. The signing of the second discharge after this, at Hurlbutt’s request, could amount to nothing else than a ratification of the payment of the money to Fletcher, even if there was any ambiguity in the direction given to Cossit. Hurlbutt’s conversation with Burnside in November, about the time the note fell due, when he said it would be paid, shows how he regarded the whole transaction after months had intervened. The note having become the property of Burnside, for value, he could sell and transfer it to whomsoever he pleased. Cossit took it with notice, and the defence against him or his indorsee, who is a nominal party, would be good, if it — 268 — were available against Burnside; but not being available against him, it is not against the plaintiff. He stands in no worse a position than Burnside. The fact that payment of the note was refused, and that Burnside urged Cossit to take it, could not change the liability of the defendant. Cossit purchased the note as an individual, and paid the full amount due thereon ; and we all think that there should be, Judgment for the plaintiff.