Cook v. Baldwin

Dbvbíts, J.

The whole of the facts, upon which the Superior Court has found that there was no acceptance of the orders, upon which this suit is brought, are not before us, so that even if, when all the facts are found, it is a question of law for the court whether they prove an acceptance, the question is here only whether the writing of the words “ I take notice of the above ” constitutes in itself such complete proof of acceptance that it was not competent for the Superior Court to find otherwise.

These orders may legally be defined as inland bills of exchange, for, although not negotiable, they have all the necessary parties to such instruments: a drawer, drawee and payee. Wells v. Brigham, 6 Cush. 6 . An acceptance of a bill of exchange may be by an oral promise to pay it as well as a written one, or by such language and conduct on the part of the drawee, when it »s presented to him, as justifies the payee in believing that he *319 consents to pay it. Grant v. Shaw, 16 Mass. 341 . Ward v. Allen, 2 Met. 53 . Wells v. Brigham, ubi supra. Dunavan v. Flynn, 118 Mass. 537 . The St. of 1 & 2 Geo. IV. c. 78, which provides that no acceptance of inland bills of exchange shall be sufficient to charge any person unless the same is in writing, has been followed by similar legislation in some of the states of the Union. Spear v. Pratt, 2 Hill, 582 . Ho such provisions have, however, been incorporated into the laws of this Commonwealth.

As an oral acceptance may be shown, it follows that an oral refusal may also be shown, when all that has taken place between the parties is oral. And when that which is written upon the bill does not by its terms necessarily import an acceptance, the party sought to be charged should be permitted to show all that was then said and done, in order that it may be determined, from the whole evidence, whether he assented to the request of the bill. The words written upon the bill are a recognition only that the bill has been presented for acceptance; they are not inconsistent with a positive refusal to accept or to become bound to pay the plaintiffs, of which refusal, according to the facts reported, there was evidence.

In regard to the acceptance of bills of exchange, it has sometimes been said that any words written thereon not putting a direct negative upon the request therein contained, such as “ presented,” or “ seen," or the writing of the drawee’s name, constitute primá facie a complete acceptance by the law merchant. Bayley on Bills, (2d Am. ed.) 163. In some cases, it has been left to the jury to determine as a fact whether the words indorsed, according to the custom of merchants, import an acceptance. Anon. Comb. 401. Dufaur v. Oxenden, 1 Mood. & Rob. 90 . But even if it be held that the words here written would, if unexplained, be a sufficient acceptance, they may be explained as between the payee and drawee, by showing the circumstances under which they were written and accompanying declarations, not inconsistent with an acknowledgment that the bills had been brought to the drawee’s notice. Story on Bills, § 243.

The fact that a payment was made upon one of the bills does not in law bind the party thus paying to pay the remainder. It may have been accompanied by a positive refusal to pay more, *320 No indorsement of the payment was made by the drawee, and the fact that the drawee made this payment, was simply to be taken in connection with other evidence in determining whether he recognized the bill as one accepted by him and which he was bound to pay. Exceptions overruled.