Spangler v. McDaniel

Perkins, J.

Charles and George Spangler brought an action of assumpsit, in 1848, against William McDaniel, alleging that said defendant, on the 28th of September, 1835, was indebted to them in the sum of 57 dollars and 50 cents; and that, being so indebted, he, at that date, made an order in writing, directed to one James A. Dunlap, and thereby requested him to pay to said plaintiffs said sum above mentioned, when he, the said Dunlap, should collect that amount for the defendant, which order was delivered to said plaintiffs; that afterwards, and before said order was presented to said Dunlap, he died; that one Alexander Dunlap was his executor; that said order was presented to said Alexander, who refused acceptance and payment, the said McDaniel having withdrawn all his funds from the hands of said James A. Dunlap before his death, and none having ever come to the hands of his said executor; and it is averred that McDaniel sustained no damage by the want of notice, &c. The defendant pleaded non assumpsit, and non assumpsit within six years. Demurrer to the second plea overruled, and final judgment for the defendant.

The order described in the declaration was, prima facie, an acknowledgment that the sum named in it was due from McDaniel, the drawer, to the payees, the plaintiffs; it was assignable by our statute, and, hence, was itself the foundation of an action. Nichols v. Woodruff, 8 Blackf. 493 .

The order, being a written acknowledgment, in legal effect, of a debt due from the drawer, took the debt out *277 of the operation of the statute of limitations, and the plea setting up that statute was no bar to the action. R. S. p. 686, s. 102. The demurrer to that plea should, therefore, have been sustained.

J. Morrison and S. Major, for the plaintiffs. L. C. Dougherty, for the defendant.

The declaration does not show when the order was presented for acceptance and payment, nor that notice of non-acceptance and non-payment was given, but it avers that before the presentment, the drawer had withdrawn all his funds from the hands of the drawee, and that he suffered no loss by the delay of presentment and want of notice. Such being the case, the drawer was not discharged from liability by such delay and want of notice, and the declaration is good. This is the rule in cases of checks or orders upon banks, Hoyt v. Seeley, 18 Conn. 353 ; and it must be the same in cases of orders upon private individuals. See Story on 'Bills, s. 367. The questions as to damage will come up on the trial.

Per Curiam .

The judgment is reversed, with costs. Cause remanded, &c.