Campbell v. Pettengill

• Decision Date: 01 June 1830
• Citation: 7 Me. 126
• Parties: CAMPBELL v. PETTENGILL & al
• Court: Maine Supreme Court

7 Me. 126

CAMPBELL v. PETTENGILL & al

Supreme Judicial Court of Maine, Penobscot

June, 1830

THIS was assumpsit for the price of certain logs sold; with a count on an order for the same sum, drawn by the defendants of the following tenor:--" Orono, June 13, 1827. Thomas Bartlett, Esquire, collector and treasurer of the Penobscot-boom-corporation. Please to pay Henry Campbell or the bearer ninety seven dollars and seventy seven cents being for value received." This was accepted, in these terms:--" July 9, 1827. Accepted to pay when in funds of the Penobscot-boom-corporation. Thomas Bartlett, treasurer of said corporation." On the back of the order was an indorsement of $ 46 52, received Sept. 14, 1827, in part payment.

It appeared, at the trial before Perham J. in the court below that the plaintiff, in June 1827, delivered the order to a third person, with directions to call on the drawers for payment, which he did; and they acknowledged that the order was due, and ought to be paid; and one of them agreed to meet him at Bangor on a certain day, and pay the amount, " if there were funds." They met accordingly; but the drawer observed that they had not funds, and that the order ought to be presented to the drawee for his acceptance; which thereupon was done. In August following the holder had some farther conversation with R. H. Bartlett, one of the drawers in consequence of which he gave up all expectation of receiving payment for the order, and returned it to the plaintiff. The defendants made no objection to the want of notice; but declined payment because they were not in funds. The treasurer, during all this period, had no cash funds of the corporation in his hands, but held its negotiable securities and other evidences of debt to the amount. He was also indebted in a small balance of account to Pettengill one of the defendants; and to the house of Bartlett & Davis, of which the other defendant was one.

Upon this evidence Perham J. ruled that the drawee had sufficient funds in his hands to justify the defendants in making the draft; and that proof of a demand and notice was necessary to entitle the plaintiff to maintain the action. To which the plaintiff took exceptions, the verdict being against him.

Judgment for the defendants.

Rogers, in support of the exceptions, argued that the drawers were personally liable, because they had no funds in the hands of the drawee. Stackpole v. Arnold, 11 Mass. 27; Mayhew v. Prince, ib. 54, and whether they had or not, should not have been determined by the judge, but by the jury. Walwyn v. St. Quintin, 2 Esp. 515; 1 Bos. & Pul. 652; Chitty on bills, 271, note a; Hoffman v. Smith, 1 Caines, 257. But if the drawee had funds in his hands, they were the funds of the corporation, and not of the drawers; who therefore, having no interest in these funds, nor power to withdraw them, could not be injured by the want of notice. The drawers had no reasonable expectation that the draft would be accepted and paid. Robbins v. Ames, 20 Johns. 150; Orr v. Maginnis, 7 East 359; Legge v. Thorp, 12 East 171.

J. McGaw and Moody, for the defendants, cited Chitty on bills, 235, 256, 268; Rucker v. Hiller, 16 East 43; Brown v. Maffy, 16 East 43; Blackham v. Doren, 2 Campb. 503; Bailey on bills, 199; Prideaux v. Collier, 2 Stark. 57.

WESTON J.

OPINION

WESTON J. delivered the opinion of the Court in Cumberland, at the adjournment of May term in August following.

In the case of Bickerdike v. Bollman, 1 D. & E. 405, it was laid down by the court, that where the drawer has no effects in the hands of the drawee, no notice is necessary. In Blackham v. Doren, 2 Camp. 503, Lord Ellenborough lamented that this exception to the general rule requiring notice, had ever been established. The same regret had been before expressed by Eyre C. J. in Walwyn v. St Quintin, 1 Bos. & P. 654, and by Lord Alvanley in Clagg v. Cotton, 3 Bos. & P. 241. And in Claridge v. Dalton, 4 Maule & Selwyn 226, Le Blanc J. says " every new case...