Imagens da página
PDF
ePub

until its date, when it becomes an ordinary check. But a true post-dated check is one that shows upon its face that it is not payable until a day later than its date. Such a check is an inland bill of exchange, and as such is entitled to days of grace. But whether it is necessary to present it for acceptance must be determined by the rule applicable to bills of exchange. That rule is that a bill of exchange payable upon a fixed day need not be presented for acceptance; but if the bill of exchange or anything that falls under that classification is payable so many days after sight or after demand 10 or at sight," presentment for acceptance is necessary in order to hold one who is entitled to claim a presentment for acceptance. Bills payable upon demand do not require presentation for acceptance for the reason that they have no days of grace.

§ 207. Paper which is not a bill of exchange. As before stated, checks in the ordinary form payable upon demand are not bills of exchange,1 nor are orders payable out of a particular fund,' even though they have been accepted;3

8 Minturn v. Fisher, 4 Cal. 35; Cutler v. Reynolds, 64 Ill. 321; Georgia Nat. Bank v. Henderson, 46 Ga. 487; Harrison v. Nicollet Nat. Bank. 41 Minn. 488; Ivory v. State Bank, 36 Mo. 475; Brown v. Lusk, 4 Yerg. 210. Compare Andrew v. Blachly, 11 Ohio St. 89; Morrison v. Bailey, 5 Ohio St. 13. Contra are the first three cases in note 2, supra.

9 Bank of Washington v. Triplett, 1 Pet. 25; Townsley v. Sumrall, 2 Pet. 170; Oxford Bank v. Davis, 4 Cush. 188; Taylor v. Bank of Illinois, 7 T. B. Mon. 576.

10 See cases last cited, and Austin v. Rodman, 8 N. C. 194; Commercial Bank v. Perry, 10 Rob. (La.) 61. Must be presented for acceptance

3 Owen v. Lavine, 14 Ark. 389;

if one-day bill. Craig v. Price, 23 Ark. 633.

11 Hart v. Smith, 15 Ala. 807; Commercial Bank v. Perry, supra. Contra, Forrest v. Rawlings, 35 Tex. 626, semble. The rule that the sight bill should be presented is correct, because it is entitled to days of grace, and acceptance or presentment therefor determines the day from which the days of grace begin.

1 See note 6 to preceding section. 2 Virginia v. Turner, 1 Cranch, C. C. 261; Gillilan v. Myers, 31 Ill. 525; Kelly v. Bronson, 26 Minn. 359; Owen v. Lavine, 14 Ark. 389; Agnel v. Ellis, 1 McGloin, 57; Mills v. Kuykendall, 2 Blackf. 47; Lanfear v. Blossom, 1 La. Ann. 148; Harriman v. Sanborn, 43 N. H. 128; Ehrichs Agnel v. Ellis, 1 McGloin, 57.

nor are orders payable upon a contingency, even though the contingency has ceased to be a contingency by the happening of an event, and even though the bill has been accepted. But the mention in the bill of a particular fund which the drawee may use to reimburse himself, or the mention in the bill of the consideration for it or of the account to which the bill is to be applied,' does not affect the character of the instrument as a bill of exchange, if it is otherwise a good bill, the sole requisite being, if the formal requisites appear, that the bill be issued on the personal credit of the drawer. Municipal orders or warrants for the payment of money are not bills of exchange; they are merely evidences of indebtedness of the municipal organization.10 Some courts have denied to them the qualities of commercial paper," but the better rule is that they are ne

v. De Mill, 75 N. Y. 370; Lindsay v. Price, 33 Tex. 280; Van Vacter v. Flack, 1 Smedes & M. 393. Reeside v. Knox, 2 Wheat. 253, applies this rule to an order upon a government officer for moneys due from the government.

4 Miller v. Excelsior Stone Co., 1 Bradw. 273; Raignel v. Ayliff, 16 Ark. 594; Kingbury v. Wall, 68 Ill.

311.

5 Cook v. Satterlee, 6 Cow. 108 (contingency and accepted); Miller v. Excelsior Stone Co., 1 Bradw. 273 (contingency had happened).

6 Early v. McCart, 2 Dana, 414; Redman v. Adams, 51 Me. 429; Wells v. Brigham, 6 Cush. 6; Coursen v. Leadlie, 31 Pa. 506; Corbett v. Clark, 45 Wis. 403; Adams v. Boyd, 33 Ark. 33; Spurgin v. McPheeters, 42 Ind. 527.

7 Lowery v. Steward, 3 Bosw. 505, 25 N. Y. 239; Hillstrom v. Ander46 Minn. 382.

son,

8 That is to say, if it contains the formal elements of a good bill. The

9

cases in the last two notes make this matter plain.

Bayerque v. City of San Francisco, Fed. Cas. No. 1137 (city warrant); Dana v. City of San Fran cisco, 19 Cal. 486 (city warrant); Koch v. Branch, 44 Mo. 542 (United States commissary warrant); Warner v. Commonwealth, 1 Pa. 154 (county warrant); Jerome v. County Commissioners, 18 Fed. R. 873 (county warrant); Boardman v. Hayne, 29 Iowa, 339 (school order); Matthis v. Town of Cameron, 62 Mo. 504; First Nat. Bank v. Rush School Dist., 32 P. F. Smith, 307.

10 Floyd County Comm'rs v. Day, 19 Ind. 450; Brownlee v. Madison Co. Comm'rs, 81 Ind. 186 (county order refunding taxes); Carnegie v. Beattyville Trustees, 13 Ky. Law R. 431; Clark v. City of Des Moines, 19 Iowa, 199; Bull v. Simms, 23 N. Y. 570; Read v. City of Buffalo, 67 Barb. 526.

11 Jerome v. County Comm'rs, 18 Fed. R. 873; Boardman v. Hayne,

gotiable so as to enable the transferee to sue in his own name at law if they are made so by their terms.12

§ 208. Paper not requiring presentment for acceptance. Certain forms of bills of exchange are considered as accepted by the form of them. Thus, a bill by one partner upon his firm drawn in regard to a partnership transaction is the accepted bill of the firm. The reasons for so holding are obvious. The bill of an agent upon his principal, where the agent is authorized to draw, or where the principal receives the money or thing of value upon the bill, is an accepted bill or, what amounts to the same thing, a promissory note of the principal, and the same rule would apply to orders of the principal upon his agent.3 The drafts of officers of corporations upon the corporation or upon another officer of the corporation are merely one phase of the rule as to principal and agent,' and therefore such bills or drafts or orders do not require acceptance. They may be considered either promissory notes

[merged small][ocr errors]

12 Varner v. Nobleborough, 2 Me. 121. But they cannot be negotiable in the sense that the assignee takes free from the defense of want of power.

1 Dougal v. Cowles, 5 Day, 511. 2 Burnheisel v. Field, 17 Ind. 609; Clark v. Lake Ave. Ass'n, 20 N. Y. Supp. 363, hold they are accepted bills. But it is said they are not promissory notes which pass by indorsement free of equities. Ashland Banking Co. v. Centralia Mut. Ass'n, 1 Kulp, 38; but the case is wrong. The defense by the corporation was ultra vires, but it was estopped because it had received full value. They are promissory notes. Indiana R. Co. v. Davis, 20 Ind. 6; Maux Ferry Co. v. Brane

gan, 40 Ind. 361; Hasey v. White Pigeon Co., 1 Doug. 193; Western Mfg. Co. v. Toole, 11 Pac. R. (Ariz.) 119; and these last cases say they are also bills accepted. The following cases hold them to be bills of exchange: Kaskaskia Bridge Co. v. Shannon, 6 Ill. 15 (a demand on the drawee is necessary, but no notice of dishonor is required); Wetumpka R. Co. v. Bingham, 5 Ala. 657 (a demand on the drawee and notice of dishonor are both necessary).

3 They are promissory notes. Hardy v. Pilcher, 57 Miss. 18; Poydras v. Delamere, 13 La. 98.

4 Hazard v. Cole, 1 Idaho, 276. And see cases in note 2, supra.

5 Baker v. Montgomery, 4 Mart. (O. S.) 90; Western Mining Co. v. Toole, 11 Pac. R. 119; Rio Grande Ex. Co. v. Coby, 7 Colo. 299; Fairchild v. Ogdensburgh Co., 15 N. Y. 337; Mob'ey v. Clark, 28 Barb. 390;

8

or accepted bills; the sole question is upon the authority of the agent. But it has been said that such bills may be considered as ordinary bills of exchange, and the reasonable rule would be that the holder could consider the instrument either a bill of exchange or a promissory note, at his option, where it is capable of two constructions. Such bills, from another standpoint, may be considered as a species of bill drawn by the drawer upon himself. All bills drawn by the drawer upon himself are promissory notes of the drawer' or accepted bills, both phrases meaning in that connection the same thing. But where the drawer of the bill and the payee are the same person, the document, when indorsed, is a bill of exchange; but another court says the document is a promissory note," especially if signed across its face by the drawer or indorsed by the drawer. 13 A bill drawn with the drawer's name omitted is either the accepted bill or the promissory note of the drawer; but if the bill is accepted by

McCormick v. Hickey, 24 Mo. App. ham v. Wardwell, 12 Me. 466. But

362. But see note 2, supra.

6 See the cases in note 3, supra, and Raymond v. Mann, 45 Tex. 301; Bailey v. Southwestern R. Bank, 11 Fla. 266; Stafford v. Bratcher, 4 Ky. Law R. 996, holding that they are of course open to defenses in the same way as promissory notes. If the agent is authorized to draw the bill, it is a bill drawn by the corporation or person upon himself. See notes 11 and 12, infra, and note 5, supra.

7 See cases in note 2, supra. 8 Brazelton v. McMurray, 44 Ala. 323; Bradley v. Mason, 6 Bush, 603. And see cases in note 2, supra.

9 Wardens v. Moore, 1 Ind. 289; Hasey v. White Pigeon Co., 1 Doug. 193; McCandlish v. Cruger, 2 Bay, 377. But see Randolph v. Parish, 9 Port. 96.

Kaskaskia Bridge Co. v. Shannon, 6 Ill. 15, requires demand, and Wetumpka R. Co. v. Bingham, 5 Ala. 65, requires notice.

11 Wildes v. Savage, 1 Story, 22; Bank of Brit. North Am. v. Barling, 46 Fed. R. 357; Hart v. Shorter, 46 Ala. 453; Rice v. Hogan, 8 Dana, 133. A bill drawn by a partner payable to his firm is not negotiable except by the firm's indorsement.

12 Lewis v. Harper, 73 Ga. 564. See note 8, supra.

13 Patillo v. Mayer, 70 Ga. 715; De Vaugh v. Haughabook, 73 Ga. 809; Planters' Bank v. Evans, 36 Tex. 592.

14 Bradley v. Mason, 6 Bush, 602; Almy v. Winslow, 126 Mass. 342; Petillon v. Lorden,86 Ill. 361; Brooks V. Brady, 53 Ill. App. 155; Bunting

10 See the last note, and Cunning- v. Mick, 5 Ind. App. 289. See Wat

another person the omission is immaterial, since the acceptance shows the person intended.15

§ 209. Waiver of acceptance.-The instances specified in the foregoing section may be considered as cases where an acceptance was waived as to the drawer by act of the drawer. There are other instances where the drawer waives an acceptance. If he give notice to the drawee not to pay the draft, his direction is a waiver of presentment for acceptance as to himself,' but not, it would seem, as to an indorser ignorant of the direction. A direction written upon the bill waiving an acceptance is a waiver as to all parties to the bill, because all parties dealing with the paper have full notice thereof. But the drawer may waive a presentation for acceptance by parol, and such a waiver would be good against himself, but ought not to be good against an indorser ignorant of the fact. On any theory of an indorser's liability upon a bill requiring presentation for acceptance upon its face, he ought to be held liable only for those matters in connection with the bill of which he has notice. His contract does not contemplate any dealing between the holder of the bill and the drawer to his prejudice. If, how ever, the acceptor waives presentment for acceptance and acceptance, the bill is accepted as to all parties to it.

rous v. Halbrook, 39 Tex. 572. If it be unsigned, but accepted, it may be shown to be a bill by proper averments. Bliss v. Burnes, McCahon, 91. An order which has no drawee, and is payable to bearer, is good only in the hands of a bona fide holder. Ball v. Allen, 15 Mass. 433. As to checks, see Ellis v. Wheeler, 3 Pick. 18.

15 Wheeler v. Webster, 1 E. D. Smith, 1. He is therefore not a stranger.

3 The same rule would apply to any indorser.

4 This waiver may be implied, it will be seen later, from a promise to accept made beforehand. But whether this kind of a waiver would be good as against the drawer and indorser does not seem to be open to question. There ought to be no doubt that the drawee's waiver of acceptance, since it becomes an acceptance, is just the same as if the drawer had written

1 Neederer v. Barber, Fed. Cas. his acceptance on the bill. The No. 10,079.

2 Webb v. Mears, 45 Pa. 222.

bill has not been dishonored, and therefore the drawer and indorsers

« AnteriorContinuar »