acceptor, however, was an accommodation acceptor, in order to recover from him the drawer must show that he put the acceptor in funds. And an accommodation acceptor is entitled in equity to be subrogated to the position of the holder of the bill. As we have said, the fact that the acceptor is an accommodation acceptor does not vary his responsibility to the holder, whether the holder knew he was an accommodation acceptor or not, and whether the holder took by indorsement before or after acceptance.10 The fraudulent diversion of the bill itself is no defense in favor of the acceptor as against a bona fide holder whether he took the bill before or after acceptance; nor is a diversion of the proceeds of goods against which the draft was drawn;12 but it would be a defense in favor of the accommodation drawer as against the acceptor who had diverted the proceeds of the shipment which he had agreed to apply upon the bill.13 The acceptor, by his acceptance, obtains a lien upon the funds of 5 Parker v. Lewis, 39 Tex. 394. 6 Toronto Bank v. Hunter, 4 Bosw. 646. 11 7See notes 14 and 15, § 226. An ̧ acceptance is good after maturity (Stockwell v. Bramble, 3 Ind. 428), and it is good after protest. $ See notes 14 and 15, § 226, and First Nat. Bank v. Schuyler, 39 N. Y. Super. Ct. 440. The holder is under no obligation to realize on the drawer's securities. Fowler v. Gate City Nat. Bank, 88 Ga. 29. Contra, Bradford v. Hubbard, 8 Pick. 155. 9 Credit Co. v. Howe Machine Co., 54 Conn. 357; Arpin v. Owens, 140 Mass. 144; Huertematte v. Morris, 101 N. Y. 63. 10 An indorsee after acceptance takes the acceptance as the promissory note of the acceptor Mechanics' Bank v. Livingston, 33 Barb. 458. 11 Fort Dearborn Nat. Bank v. Carter, Rice & Co., 152 Mass. 34; the drawer in his hands. He can charge a commission for accepting only by agreement or by a customary mode of dealing. 15 The liability of the acceptor is for the face of the bill and interest,16 and, if protested, for the notarial fees;" but he is not liable for damages unless made so liable by statute. The promise to accept a bill to be drawn would cover as damages for a breach the whole cost and expenses, including re-exchange and interest.18 An order payable in stocks accepted makes the acceptor liable, not for the amount of money named, but for the value of the stocks at the date they should have been delivered.19 The acceptor supra protest recovers from the drawer or the party for whom he accepts protest fees as part of the bill. § 229. Conditional and variant acceptances.- A conditional acceptance is an absolute acceptance of a conditional order or a conditional acceptance of an absolute order. Of the first sort are acceptances of orders payable out of a particular fund or if certain funds should be realized.' Such acceptances are impossible to arise upon bills of exchange, because such documents are not bills of exchange. A conditional written acceptance of a bill of exchange must be one that is made so upon its face, because an absolute written acceptance cannot be shown to be conditional. But conditional written acceptances may be acceptances of a bill 14 Lambert v. Jones, 2 Pat. & H. 144. Lien by agreement, see Coats v. Donnell, 94 N. Y. 168; and for the lien of holders upon securities to secure acceptances, see Kramer's Appeal, 37 Pa. 71. 15 Pratalongo v. Larco, 47 Cal. 378; Gibson v. Bailey, 24 Miss. 237. See Millaudon v. Arnaud, 4 La. 542. 16 Henrick v. Farmers' Bank, 8 Port. 539; Gibson v. Bailey, 24 Miss. 237; Van Arsdale v. Boardman, 3 How. Pr. 60. 17 Bowen v. Stoddard, 10 Met. 375; Manning v. Kohn, 56 Ala. 235. 18 Russell v. Wiggin, 2 Story, 213. 19 City Bank v. Gerard Bank, 10 La. 562. 1 See Seymour v. Lumber Co., 58 Fed. R. 957, 16 U. S. App. 245. 2 See § 242, post, and §§ 207 and 208, ante. 3 Haines v. Nance, 52 Ill. App. 406; Cowan v. Hallock, 9 Colo. 572; Heavener v. Donnel, 7 Smedes & M. 244. A conditional acceptance must be clearly expressed. Coffman v. Campbell, 87 Ill. 98. to be drawn where the acceptance might be considered conditional, as we have heretofore seen. Oral acceptances may be conditional in the same ways as written acceptances are. If the acceptance is conditional, the holder's assent to it makes the acceptor liable upon the happening of the contingency named in the order. If that condition has already happened, the order and acceptance are absolute; but, if possible, a condition will be applied to things to happen in the future, not to matters which have already happened. Again, the acceptor cannot, by his own act, defeat the condition and thus destroy the effect of the order. The same rules are applied to acceptances of orders which are made conditional. They will be given a prospective operation," and cannot be defeated by the act of the acceptor; 12 but otherwise the acceptor does not become liable until the contingency has happened, but when it has happened his liability is absolute. An offer of a conditional acceptance is a continuing one and may be acted upon until revoked.15 But a general acceptance of an order drawn on condition that the paper is presented at a certain time renders the ac 4 See § 220, ante. The acceptance is conditional upon the bill conforming to the authority; but this use of language is not accurate. No acceptance ever existed. 5 See, for instance, Phelps v. Northrup, 56 Ill. 156, and Hall v. Steel, 68 Ill. 231, where the acceptance implied was conditional. 6 Read v. Wilkinson, 2 Wash. C. C. 514; Ford v. Angebrodt. 37 Mo. 50; Rice v. Porter, 16 N. J. Law, 440; Tyler v. Stalk, 103 Mich. 268; Cummings v. Hummer, 61 Ill. App. 393; Henry v. Hazen, 5 Ark. 401; Walker v. Lide, 1 Rich. Law, 249; Riley v. Smith, 64 N. Y. 576; Keyes v. Follett, 41 Ohio St. 535; Gill v. Weller, 52 Md. 8. See Newhall v. Clark, 3 Cush. 376. 7 Brabazon v. Seymour, 42 Conn. 551; Phillips v. Frost, 29 Me. 77. 8 United States v. Metropolis Bank, 15 Pet. 377. 9 Herter v. Goss Co., 57 N. J. Law, 42; Phelps v. Northrup, 56 Ill. 156. The drawer cannot countermand after acceptance. Northern Bank v. Leverich, 8 Rob. (La.) 207. 10 Consult the cases in note 6, supra, and Granmer v. Carrol, 4 Cranch, C. C. 400. 11 Consult the case in note 8, supra. 12 See cases in note 9, supra. 13 See cases in note 6, supra, and Marshall v. Clary, 44 Ga. 511. 14 Granmer v. Carrol, 4 Cranch, C. C. 400. 15 Wylie v. Brice, 70 N. C. 422. ceptor liable even if the paper be not presented at that time,16 and the same rule ought to apply to a conditional acceptance of a general order. Acceptances payable out of certain funds are conditional," but absolute when the fund is realized,18 and the acceptor cannot put it out of his own power to collect the fund.19 Acceptances according to the terms of a certain contract are conditional,20 as are acceptances out of the proceeds of work to be done, or out of the proceeds of a certain contract, or out of the proceeds of certain goods to be sold." Conditional acceptances result where the acceptance is made conditional when in funds," and where an order is so accepted the holder cannot resort to the drawer until the drawee refuses to pay when in funds,23 and the construction of funds is that the word means cash.24 The drawee cannot defeat by his own act the realization of funds,25 nor can the drawer countermand the order after acceptance. The burden is upon the holder of the order to show the drawee's possession of funds when suing upon such an acceptance.27 It must be noted that a conditional or variant acceptance, if not notified to prior parties on the bill, discharges those prior parties. The acceptance must be made by the drawee or by his agent.29 If accepted by 26 16 Gay v. Haseltine, 18 N. H. 530. 17 Flanagan v. Mitchell, 16 Daly, 223. 18 See last note. 19 Phelps v. Northrup, 56 Ill. 156. 20 Haseltine v. Dunbar, 62 Wis. 162; but see Cowan v. Hallock, 9 Colo. 572; Keyes v. Follett, 41 Ohio St. 535. 28 26 Northern Bank v. Leverich, 8 Rob. (La.) 207. 27 Marshall v. Clary, 44 Ga. 511. 28 See Rowe v. Young, 2 Bligh, 391; Walker v. State Bank, 13 Barb. 636. The rule would be the same as to paper not requiring acceptance, but acceptance refused on it. Thatcher v. Mills, 14 Tex. 13. A change of 21 See cases in last note and in the city where payable is a varinote 6, supra. ation that drawer and indorser 22 See Campbell v. Pettingill, 7 Me. must concur in. Niagara Bank v. 126. 23 See last case cited. 24 Carlisle v. Hooks, 58 Tex. 420. 25 See cases cited in note 19 and note 9, supra, and Keyes v. Follett, 41 Ohio St. 535. Manufacturing Co., 31 Barb. 403. any one else it is a variant acceptance, but that person will be liable according to his contract.30 If one of several joint drawers accepts he binds himself," although the effect of such an acceptance upon the rights of drawer and indorsers. would be to release them unless they assented. Like any other variant acceptance it is binding between the acceptor and the holder. The acceptance need not be dated. The presumption will be in favor of its having been made before maturity at a proper time.23 § 230. Discharge of parties to accepted bill.— A bill of exchange differs from a check in this, among other things, that an absolute acceptance of it does not release the drawer or indorser; they remain liable secondarily to the acceptor. But in order to have this effect the acceptance must be an acceptance according to the tenor of the bill. It must be absolute, or if conditional it must be notified to prior parties." If the prior parties acquiesce and do not object to such an acceptance they will be held to have assented thereto. Bigler Road Co., 2 Nev. 214. If he accepts personally he binds himself. Lollerstedt v. Griffin, 29 Ga. 708; Nicholls v. Diamond, 9 Exch. 154; Tabér v. Cannon, 8 Met. 456. Compare Walker v. State Bank, 9 N. Y. 582. But it has been held that the agent accepting individually may show that the holder knew he was agent and was accepting as agent. Bruce v. Lord, 1 Hilt. 247. But see Arnold v. Sprague, 34 Vt. 402. But if a bill is drawn by a principal upon its officer as an individual, his acceptance in the name of his company is not an acceptance by the drawee. See Walker v. Bank of State, 13 Barb. 636. 30 See Markham v. Hazen, 48 Ga. 570; Rice v. Ragland, 10 Humph. 545, and note preceding. If 31 Smith v. Milton, 133 Mass. 369. 32 Kenner v. Creditors, 1 La. 120. 33 Roberts v. Bethell, 12 C. B. 778. The acceptance may be made before the bill is drawn (Hopps v. Savage, 69 Md. 513), or before it is completed. Pittsburgh Bank V. Neal, 22 How. 97. 1 See § 150, ante. 2 Rowe v. Young, 2 Bligh, 391; Scattergood v. Finley, 20 Ga. 423. semble. 3 The holder has the right to insist upon an absolute acceptance. Tuckerman v. Hartwell, 3 Me. 153; Green v. Raymond, 9 Neb. 295. The making of the acceptance payable at a particular place of business is not a variation or a condition. Troy City Bank v. Lauman, 19 N. Y. 477; Todd v. Kentucky Bank, 3 Bush, 626; Myers v. Standart, 11 Ohio St. |