Nov. Term, 1860. PRATT V. GRAFF. Monday, the defendants were ready to pay, &c., out of the mill and warehouse, in such articles therein, for vending purposes, as the plaintiff should order. Held, also, that the answer of the defendants to the demand of payment in flour, without an offer to pay in other property, or in the article demanded, at some subsequent reasonable time, was, in effect, a refusal to pay the note. APPEAL from the Allen Common Pleas. DAVISON, J.-The appellee, who was the plaintiff, brought this action against Pratt & Co., alleging, in his complaint, that the defendants, on March 10, 1858, by their note of that date, promised to pay Bowser & Story $201, out of the mill and warehouse of the defendants, as they, Bowser & Story, should order it; and that said Bowser & Story afterward, &c., assigned the note to the plaintiff. It is averred that after the assignment on March 26, 1858, the plaintiff demanded and ordered payment of the defendants, out of their mill and warehouse; but they refused to pay, &c. A copy of the note was filed with the complaint, and reads thus: "Fort Wayne, March 10, 1858. Due Bowser & Story 201 dollars, to be paid out of the mill and warehouse, as said Bowser & Story may order it." (Signed) "Pratt & Co." Defendants answered by eight paragraphs. The first is a general traverse; demurrers were sustained to the second, third, fifth, and eighth; and upon the fourth, sixth, and seventh issues were made. The Court tried the cause, and found for the plaintiff'; and, having refused a new trial, rendered judgment, &c. The errors assigned, so far as they are noticed in the appellant's brief, relate: 1. To the sufficiency of the complaint; 2. To the action of the Court upon the demurrer to the third paragraph of the answer; and 3. To the refusal to grant a new trial. As has been seen, the note promises to pay "out of the mill and warehouse, as the payees may order," without designating the particular mill and warehouse out of which payment was to be made. Hence, it is argued that the note is ambiguous; and, being so, the complaint is defective, because it fails to aver extrinsic facts sufficient to explain the ambiguity. This position is not well taken. It is averred, "that LAW SPECAY PRATT RAFF. the note was to be paid out of the mill and warehouse of the Nov. Term, defendants, and that the plaintiffs demanded and ordered 1860. such payment, and they refused to pay," &c. The averfuent thus made, it seems to us, renders the complaint a sufficient cause of action. It explains the ambiguity, by showing that the mill and warehouse of the defendants were intended by the contract. And if, as alleged, they refused to pay on demand, the plaintiff's right of action at once accrued. The third paragraph of the answer alleges, "that defendants, at all times since they made the note, have been, and still are, ready and willing to discharge it, at their mill and warehouse, with such chattels as they have therein for vending purposes." This is not a valid defense to the action. As we construe the note, the plaintiff was entitled to payment in such articles of property, the usual manufacture of the mill, or usually kept in the warehouse, as he might elect to receive. 2 Phil. Ev. 4 Am. Ed. p. 746, note 1. For aught that appears in the defense, the defendants may have been ready, &c., to discharge the note, in articles of property of their own choice, and not in such as the plaintiff elected to receive in payment. To render the defense effective, it should have averred that the defendants were ready, &c., to pay the note "out of the mill and warehouse," in such property therein "for vending purposes" as the plaintiff should order, and that the plaintiff had not attended at the place of payment and given such order. Chipman on Cont. 101.-Johnson v. Baird, 3 Blackf. 182. Upon the trial, the plaintiff gave in evidence the note with the indorsement, and then produced a witness, who testified that "he called on the defendants, at their warehouse, with the note, and demanded its payment of them in flour; when they replied that they had no flour then on hand."" At the time of this demand, there appeared to be a large quantity of other goods in the warehouse; but to whom they belonged, witness did not know. This was all the evidence. Was it sufficient to sustain the verdict? The evidence allows the inference, that the person who made the demand, having the note in his possession, was the authorized agent of the plaintiff. Indeed, his authority as such agent was not questioned V. TURNER. Nov. Term, by the defendants: and from their reply to the demand "of 1860. payment in flour," it may be readily inferred that that was DICKERSON one of the articles usually manufactured in the mill, or usually kept in the warehouse. But it is said, that the evidence was unauthorized by the averments in the complaint. We think otherwise. The reply of the defendants to the demand, viz: "that they had no flour then on hand," without an offer to pay in other property, or in the article demanded, at some subsequent reasonable time, was, in effect, a refusal to pay the note. The court, sitting as a jury, has so construed the facts presented by the evidence, and we are not inclined to disturb its conclusions. Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs. William S. Smith, William M. Crane, D. H. Colerich, and L. M. Ninde, for the appellants. M. Jenkinson, for appellee. DICKERSON and Others v. TURNER and Another. When the drawee of a bill of exchange accepts the bill, the presumption is that he has funds of the drawer, in his hands, to the amount of the bill; but that presumption may be rebutted. The drawee may show that he accepted and paid the bill for the accommodation of the drawer; and, then, the law will imply an undertaking, on the part of the drawer, to indemnify the acceptor, who, on such implied obligation, may have his action against the drawer. If one of several drawers of a bill joins in it as principal, and the others as sureties for him, and the drawee, with a knowledge of these facts, accepts and pays it, and without any funds of the drawers in his hands, there is an implied obligation on the part of all the drawers--sureties as well as principal, to indemnify him; and he may have his action against them all, as for money paid to their use. When a party objects to a ruling of the Court, and does not follow up his objection by taking an exception to such ruling, the objection is waived. The grounds of objection to the admission of evidence must appear to have been presented to the Court below or the objection will not be noticed in this Court. APPEAL from Warrick Common Pleas. DAVISON, J.-This was an action, by the acceptors of a Nov. Term, 1860. bill of exchange against the drawers. James Turner and DICKERSON Edward Wilson were the plaintiffs, and Charles Dickerson, Franklin Bethel and Chester Bethel were the defendants. V. TURNER. Monday, The complaint alleges, substantially, these facts: On Feb- November 25. ruary 3, 1855, Chester Bethel, one of the defendants, was indebted to the plaintiffs $830, on account of previous dealing between them and an old mercantile firm of Shelby & Bethel, of which he, Chester Bethel, had been a member. To secure the payment of this indebtedness to the plaintiffs, he procured the firm of Dickerson, Bethel & Co., of which he was then a member, to draw a bill of exchange, for $830, on the plaintiffs, and payable to one Thomas Bethel. The defendants. Charles Dickerson and Franklin Bethel were also members of the firm of Dickerson, Bethel & Co., when the bill was drawn. The bill is dated February 3, 1855was, on that day, accepted by the plaintiffs, and was afterwards indorsed, by the payee, to the said Chester Bethel, who indorsed it to certain persons doing business under the name of Twitchel & Co. At the time the bill was drawn, accepted and indorsed, it was well known, and understood by all the parties, that Dickerson, Bethel & Co., the drawers, had no funds in the hands of the plaintiffs; that Chester Bethel became a party to said bill for the purpose of continuing his liability to the plaintiffs for the $830 due them from Shelby & Bethel; and that Charles Dickerson and Franklin Bethel became parties to the same bill as the sureties of Chester Bethel, who, it was agreed, should pay and take up the bill when it became due and payable. It is averred that the defendants wholly failed to pay the same at maturity, and that on June 5, 1855, it was duly protested for nonpayment, of which the defendants had due notice. And further, it is averred that the plaintiffs, in order to save their credit, were compelled to, and did, pay the bill to Twitchel & Co., to whom it had, as above stated, been indorsed. Wherefore the plaintiffs demand $990-the amount specified in the bill with interest, &c. Defendants demurred to the complaint, but their demurrer was overruled and they excepted. V. TURNER. Nov. Term, Upon this ruling the inquiry arises: Whether, upon the 1860. case made by the complaint, the plaintiffs are entitled to DICKERSON recover? When the drawee of a bill of exchange accepts the bill, the presumption is that he has, in his hands, funds of the drawer, to the amount stated on its face; but that presumption may be rebutted. The drawee may show that he accepted and paid the bill for the accommodation of the drawer, and, then, the law will imply an undertaking, on the part of the drawer, to indemnify the acceptor, who, on such implied obligation, may have an action against the drawer. Edwards on Bills, &c., pp. 379-532. This exposition is, no doubt, correct, and the result is, the complaint is not defective, because it shows, affirmatively, that the drawees, when they accepted the bill, had no funds of the drawers in their hands, and that they paid the bill, when it matured, with their own funds. But it is assumed, by the appellants, that this action is upon the bill itself, and not upon an implied undertaking, by the drawers, to "indemnify the acceptors," and, hence, they insist that the plaintiffs have misconceived their remedy. We think otherwise: As we construe the complaint, the action is not upon the bill, but is founded on an implied promise arising out of the facts alleged. Again, it is argued that Chester Bethel, one of the drawers, was principal in the bill; agreed to pay it when due, and is alone liable to the acceptors; that Charles Dickerson and Franklin Bethel, the other defendants, being in no wise connected with that agreement, are not liable in this action. This position is not correct. Whether they were or not so connected can not, in our judgment, vary their liability. It is, however, averred in the complaint, and admitted by the demurrer, that these defendants "became parties to the bill as sureties of Chester Bethel." And it is, to some extent, questionable whether against them, as sureties, there is an implied promise to refund the money paid by the plaintiffs. Upon this point there have been various adjudications, but the weight of them seems to accord with the position, that such sureties are liable upon an implied promise to refund. Suydam v. Westfall, 2 Denio, 205, is precisely in point. In that case, a bill of exchange was drawn by several; one of whom joined in the |