Denniston v. Imbrie

WASHINGTON, Circuit Justice (charging jury). The first point to which we shall draw your attention is, the credit claimed by the defendant on account of the bill of exchange, drawn by Eves & Wistar on Barber & Co. in favour of the defendant, and by him remitted to the plaintiffs, on the 8th of October, 1S06; which the plaintiffs were desired to place to the credit of his account. This bill was received early in November of the same year, and was credited on the 6th of that month. It was noted for nonacceptance on the same day; and, of course, was at maturity on the 6th and 9th of January, 1807. It was, however, not presented for payment .till the 30th of that month; and was then noted for non-payment. It was charged to the defendant, on the 24th of the succeeding month. Notice of the dis-honour of the bill was given to the defendant, by a letter from the plaintiffs, bearing date the 31st of January. We forbear, at this time, to notice more of the evidence relative to this bill, lest it should be supposed by the jury, or by others, that the circumstances detailed in that evidence have any influence upon the' opinion of the court. We understand the law to be, that, if a debtor remits to his creditor a bill of exchange, in discharge, or on account of the debt he owes, the creditor may receive it as such, or decline to do so, and return it;-or he may present it for acceptance and payment, as the agent of his debtor. If he gives his debtor credit for the amount of the bill, as pajunent, or in any other manner accepts it as such, it is a payment of so much of the debt He stands then as an endorser of the bill for consideration paid, and may have his recourse against the drawer and endorsers, in case it should be dishonoured. But if he has been guilty of negligence, in not presenting the bill in time for acceptance and payment and giving timely notice to all those he means to resort to, of the dishonour of the bill, he stands-in the situation of all other holders of bills of exchange. He can never re-charge the bill to his debtor, and do away the credit once given, or to which he was once entitled. This has been decided in this court, in two or three cases. If a doubt could exist, whether this bill was received by the plaintiffs, in part discharge of the debt due to them, and that they had made it their own; their letter of the 31st January, 1807, to the defendant, would be sufficient to remove it. What, then, is incumbent on the holder of a bill of exchange to do. in order to charge the drawer and endorsers, in case it should be dishonoured? He must, in due time, present it for acceptance; and when at maturity, allowing the days of grace, he must present it for payment If acceptance or payment be refused, he must cause it to be protested, or. at least, noted for non-payment, on the day of refusal; and he must also give timely notice of the same to the drawer and endorsers, against whom he means to resort. What was the conduct of the plaintiffs in relation to this bill? It was noted for nonacceptance on the 6th of November, and was neither presented at maturity, nor protested for non-payment. Payment was not demanded at any time; not even on the 30th of January, upwards of 20 days after it should hare been; since it appears by the protest, on that day, that the only inquiry made of the drawees was. whether they would have paid, had the bill' been presented in due time? No notice was given of the non-acceptance, until after the informal demand of payment 20 days after it was passable. It is said that the drawers had no funds in the hands of the drawees, and therefore a timely protest and notice were unnecessary. It will readily be admitted, that, if this were an action against the drawers, they could not defend themselves, by alleging the negligence of the holder in these respects, if they had no funds in the hands of the drawees, or had no right to draw upon them. But as to the endorser, it is perfectly immaterial whether the drawers had [487] authority to draw, or not The implied con-1 tract, which, by his endorsement he entered into with the holder, was to pay, upon condition that the bill was duly presented .and protested, and notice given to him of ■ the refusal of the drawees. It is contended, that if all these “formalities,” as they are styled, had been strictly attended to, still the situation of the defendant would not have been improved, by reason of the failing circumstances of the drawers. If the fact were so, (and there is strong evidence to the contrary,) still the court and jury have nothing to do with considerations of this nature. The rule of law is imperative.; and if it were subject to be controlled by such circumstances, it would cease to be a rule. Another objection made to this credit is, that the defendant, in a letter addressed by him to the plaintiffs, in the year 3809, stated that he had some small deductions to make from his account; which the counsel considers as amounting to a promise to relinquish his claim to this credit. How far he would have been bound by such a promise, had it been distinctly made, is a question not necessary to decide. But, as the defendant, from the time he first had notice of the plaintiffs’ irregularity in respect to this bill, had uniformly insisted, that the plaintiffs had made the bill their own,—-it would be giving to the general expressions of the letter, a most extravagant and unnatural construction; to make them amount to a promise to submit to the loss of so large a sum of money. This objection, therefore, cannot be sustained. ■ The last objection made to this credit is, that the bill having been returned to the defendant, and retained by him, to this moment, so far as appears, he ought to be now debited with the amount The answer to this is obvious. The defendant received the bill, as the agent of the plaintiffs, to collect the amount for the plaint.ffs, from the drawers, if he could. He did receive a small part of it from the assignees, and debited himself with the same, in account with the plaintiffs. If, as agent, he has been guilty of any neglect, he is.answerable for the same, whenever an action is brought against him, fitted for such a case. That question cannot be investigated in this action, which is for goods sold and delivered. . Upon the whole, the court is of opinion, that if this action were upon the bill of exchange against the defendant, as endorser, the plaintiffs, for the reasons mentioned, could not recover. Much less reason is there, for charging him with the amount of- the bill, in this action; or, in other words, expunging from the account, the credit once given; and to which he is entitled in part discharge of that account. The second question respects the mode of charging interest on the plaintiffs’ account. The court-need only refer to what was said in relation to this subject, in the case of Barclay & Co. v. Kennedy [Case No. 976], decided at this term. Whether the usage is sufficiently proved by the evidence, is submitted to the jury; as also, whether the mode of charging the interest in this- case, is conformable with the usage so proved. We shall make but this observation; that if .the usage proved, is applicable only to cases of running accounts, annually stated, and furnished to the merchants here, it will not govern a case where an account is sent, after all commercial transactions have ceased; and particularly where the adding the interest to the principal, has not received the implied sanction of the debtor; but, on the contrary, payment is refused, and a suit is brought to recover such balance. Neither would such a usage authorize the creditor to make other rests in the account—thereby accumulating the amount, by converting the interest into principal. The last question respects interest during the war. The opinion delivered in the case of Oonn v. Penn [Case No. 3,104] continues to receive the approbation of the court We think, that if the alien enemy has an agent in the United States, or if the plaintiff himself was in the United States, and either of these facts known to the debtor, interest ought not to abate. If the agent be in the state where the debtor resides, a general knowledge of that fact may be sufficient, without bringing it home to the debtor. The debtor might have paid his debt, either to the creditor, or his agent, in this country, without the danger of violating his duty, or the-laws of the land. It is said, that the abatement of. interest, during the war, upon a debt due to an alien enemy, is a hardship which should prevent the adoption of the rule which this court has approved. If it be so, the rule must nevertheless be enforced, as we do not sit here to establish or to uphold a flexible system of laws, to be bent sometimes one way, and sometimes another, according to our notions of hardship. But even this argument, slight as its influence should be, when aimed against a legal principle, is unfounded in fact; since the creditor may always remove the objection, by having an agent on the spot, authorized to receive the debt