if, on production of such a bill, an acceptance appears to have been written by the defendant under a date which is not in his handwriting, the date is evidence of the time of acceptance, because it is the usual course of business in such cases for a clerk to write the date, and for the party to write his acceptance under the date.1 If there be no date, it may be inferred to have been accepted on the date of the bill.2

It has been suggested that when accepting a foreign bill for a large amount, and without advice, it is advisable, and a proper precaution, to specify the amount in words and figures (e. g., $2,000. Accepted for two thousand dollars), to avoid the risk of alteration.3

SECTION III.

FORM AND VARIETIES OF ACCEPTANCE-EXPRESS AND IMPLIED

ACCEPTANCE.

496. According to the law merchant, an acceptance may be (1) expressed in words or (2) implied from the conduct of the drawee. (3) It may be verbal or written. (4) It may be in writing on the bill itself or on a separate paper. (5) It may be before the bill is drawn or afterward. And (6) there may be absolute, conditional, and qualified acceptances.

Acceptance by telegram has been held sufficient; and under the statutes of New York, which make an unconditional promise to accept a bill before it is drawn equivalent to actual acceptance in favor of a party, who upon the faith thereof receives it for valuable consideration, it has

B

Text approved Whilder v. M. & P. N. Bank, 64 Ala., 28.

Central Savings Bank v. Richards, 109 Mass., 414; Coffman v. Campbell (Sup. Ct. Ill.), Cent. L. J., July 12, 1878, p. 26; 87 Illinois, 98; Whilden v. Merchants', etc., Bank, 64 Ála., I.

been adjudged that a telegram written and sent by the promisor operates as acceptance.1

By statute, in many of the States, these principles of the law merchant governing acceptances are modified, or repealed in one respect or another, as will be seen hereafter."

$497. (1) As to express acceptance it is usually made by writing the word "accepted" across the face of the bill (which the drawee may do with pen or pencil), and adding the acceptor's signature. But by the law merchant neither the word nor the signature is necessary-" Accepted without a signature, "seen,' "honored,"5" presented," "I will pay the bill," or writing the day and month when presented; or a written direction of the drawee on the bill to some other person to pay it," or the signature of the drawee alone, or the word "excepted," it being obviously intended for "accepted." "1 The words "I take notice of the above" were recently held in Massachusetts not necessarily to import acceptance; and even if they did, unexplained, to be open to explanation, as between immediate parties. 12 Where the drawee wrote his name across the bill, it was held inadmissible for him to show that he refused to write "accepted," for the name alone imported it.18

10

11

'Molson's Bank v. Howard, 40 N. Y. Sup. Ct., 15.

In Missouri a parol acceptance is invalid by statute; and a parol promise to accept in consideration of money to be advanced by promisee has been there held within the statute. Flato v. Mulhall, 4 Mo. Ap., 476.

Philips v. Frost, 19 Me., 77; Dufaur v. Oxenden, 1 Moody & R., 90; Leslie v. Hastings, 1 Moody & M., 119.

'Barnet v. Smith, 10 Foster, 256; Spear v. Pratt, 2 Hill, 582.

Anoymous, Comb., 401.

Story on Bills, § 243; 1 Pars. N. & B., 282.

'Ward v. Allen, 2 Metc. (Mass.), 53; Leach v. Buchanan, 4 Esp., 226.

1 Pars. N. & B., 243; Cunningham on Bills, 26.

I

'Moore v. Whithy, Buller, N. P., 270; Harper v. West, 1 Cr. C. C., 192.

10

Spear v. Pratt, 2 Hill, 582; Wheeler v. Webster, 1 E. D. Smith, 1 ; Kyd on Bills, 80.

"Miller v. Butler, 1 Cr. C. C., 170. 12 Cook v. Baldwin, 120 Mass., 317 (1876) 18 Kaufman v. Barrenger, 70 La. Ann., 419.

$497a. Part payment of bill.-Merely paying and cred iting a part of the amount on the bill would not amount to an acceptance in writing;1 and even where a parol acceptance is sufficient, a part payment by the drawee is not such a recognition as will, as matter of law, bind him to pay the remainder, for it may have been accompanied with positive refusal to pay more.2

$4976. Statutory requirements of acceptance in writing on the bill.-In the year 1821 it was enacted in England, by the statute 1 & 2 Geo. IV., c. 78, § 2, that "no acceptance shall be sufficient to charge any person, unless such acceptance be in writing on such bill." Since that statute it has been laid down by high authority that a mere signature on the face of the bill, without any words of acceptance, may be an acceptance in writing within the meaning of the statute; and, on the other hand, that words of acceptance without a signature, if intended as an acceptance, might suffice. By statute 19 & 20 Victoria, c. 78, 2, it was enacted "that no acceptance of any bill of exchange shall be sufficient to bind or charge any person, unless the

1 Bassett v. Haines, 9 Cal., 261. In this case it appeared that A. drew an order on B. in favor of C. for $206.50. C. presented it to B., who paid $22.50 thereon, and the amount was receipted on the back in the handwriting of B., and signed by C. The Court said: “The only question in the case is, whether this constitutes an acceptance in writing, signed by the acceptor,' as required by the sixth section of the act relating to bills of exchange and promissory notes.' Wood's Digest, 72. "We think it clear that this was no acceptance, either at common law or under the statute. Haines may have owed the drawer, Willse, the sum of twenty-two dollars and fifty cents, and no more. If so, the payment of that amount, and the indorsement of the same upon the paper, would not imply that he accepted and would pay the whole. The receipt is evidence that Haines owed only that sum and paid it. In all the instances cited by the counself of plaintiff, the writing on the bill related to the entire amount. But the receipt only relates to the amount paid, and implies no acceptance of the order for the balance. Besides this, the receipt is not signed by the acceptor, within the meaning of the statute."

'Cook v. Baldwin, 120 Mass., 317 (1876). See post, § 499.

Byles on Bills, 12th ed., 191. See Ames on N. & B., 1 vol., 166. In Leslie v. Hastings, I M. & R., 119 (1831), it was held that a blank acceptance, that is, a mere signature, was "an acceptance in writing." See also Molloy v. Delves, 7 Bing., 428; Baker v. Jubber, 1 M. & G., 212, semble.

'Dufaur v. Oxenden, 1 M. & R., 90 (1831). See also Corlett v. Conway, 5 M. & W., 655, per Parke, B. Chitty on Bills (13 Am. ed.), [*291].

same be in writing on such bill, and signed by the acceptor or some person duly authorized by him.” After this enactment it was contended that inasmuch as before its passage a mere signature was deemed an acceptance in writing within the statute 1 & 2 Geo. IV., it was still not the less so; and that inasmuch as it was a signature of the acceptor, the bill was both accepted in writing, and signed by the acceptor within the meaning of the statute 19 & 20 Victoria. But looking at the history of the statute, Lord Denman was of the contrary opinion: and the mere signature was held not to amount to an acceptance under the later statute. The decision, however, was immediately nullified by act of Parliament. Under a similar statute in New York, to that of 19 & 20 Victoria, the mere signature of the drawee was deemed a sufficient acceptance, Cowen, J., saying: "This is treated by the law merchant as a written acceptance-a signing by the drawee. . . . . It is supposed that the rule has been altered by 1 R. S., 757 (2d ed.) This requires the acceptance to be in writing, and signed by the acceptor or his agent. The acceptance in question was, as we have seen, declared by the law merchant to be both a writing and a signing. The statute contains no declaration that it should be considered less.

.. The whole purpose was doubtless to obviate the inconvenience of the old law, which gave effect to a parol acceptance." 2

$498. Position of acceptor's signature.-Although usual it is not necessary for the signature when written to be across the face of the bill. It may be written at the bottom of the bill immediately below the drawer's name, or it may be written above and parallel to it. Thomson says: "The position of the drawee's subscription seems immate

2

Spear v. Pratt, 2 Hill, 582 (1842); Bigelow on Bills and Notes, 2d ed., 32; Edwards on Bills, 411-415. Wheeler v. Webster, 1 E. D. Smith, 1; Peterson v. Hubbard, 28 Mich., 197; Kaufman v. Barringer, 20 La. An., 419, accord.

rial, provided it be there, for it may be written above as well as below that of the drawer; and as it has been held that an indorsement may be written on the face of the bill, an acceptance may, as is sometimes the case, be indorsed."1

A letter from the drawee to the drawer, the latter being dead, but the former not knowing it, has been held an acceptance, on the ground that it was so intended.*

$498a. Death of drawer no revocation of bill.—The

death of the drawer is no revocation of a bill if it has been delivered to the payee, and the drawee may accept and pay it.3 "The death of the drawer," says Parsons, “is no objection whatever to an ordinary acceptance by the drawee, whether with or without knowledge, for the death is no revocation of the bill if it has passed into the hands of a holder for value." 4 This view seems to us entirely correct, and has the sanction of authority. Upon the delivery of the bill to the payee, the liability of the drawer becomes complete, if the holder is guilty of no laches, and it results that the drawer has a right to discharge that liability."

$499. Implied acceptance.-(2) Acceptance may be implied from the conduct of the drawee. Any act which clearly indicates an intention to comply with the request of the drawer, or any conduct of the drawee (no statute intervening) from which the holder is justified in drawing the conclusion that the drawee intended to accept the bill, and intended to be so understood, will be regarded as an acceptance.s

2

1 Thomson on Bills, 220. Billing v. De Vaux, 3 Man. & G., 565. Ante, § 491; Cutts v. Perkins, 12 Mass., 206; Thomson on Bills, 216; Story on Bills, § 250; 1 Parsons N. & B., 287; Chitty on Bills [*287], 325; Hammond v. Barclay, 2 East., 227, acceptance was before the drawee had notice of the death of the drawer.

I Parsons N. & B., 287, and note b. See chapter on Checks, § 1618a; Story on Bills, § 250.

'Cutts v. Perkins, 12 Mass., 206.

"Cutts v. Perkins, 12 Mass., 210-211 (1815).

Andressen v. First N. B., 2 Fed. R., 125, in which case bank paid part cash, and issued certificate of deposit for the balance. See ante, § 497a.

1 Pars. N. & B., 287; Byles on Bills (Sharswood's ed.) [*185], 315; Billing v. De Vaux, 3 M. & G., 565; McCutchen v. Rice, 56 Miss., 455.