Cole's Adm'r v. Wintercost

• Decision Date: 01 January 1854
• Parties: COLE'S ADM'R v. WINTERCOST.
• Court: Texas Supreme Court

12 Tex. 118

COLE'S ADM'R

v.WINTERCOST.

Supreme Court of Texas.

1854.

In order to fix the liability of the drawer of a bill of exchange, the bill must be presented to the drawee, or facts must be shown which excuse the failure to present it. Quere, whether this case intimates that notice is necessary to bind the drawer where the bill is not accepted, since the Act of 1848. (Hart. Dig., Art. 2530.) (Note 32.)

Where the plaintiff, in an action on a bill of exchange, seeks to charge the defendant on the ground of no funds in the hands of the acceptor, or of a promise to pay, after failure to protest and give notice, those facts must be alleged in the petition.

See this case for proof which would not amount to an admission of a particular claim, or to a waiver of a failure to use due diligence to collect a bill of exchange.

Where there is a failure of legal diligence to fix the liability of the drawer of a bill of exchange, the holder may excuse such failure by alleging and proving that the bill was drawn without funds, unless the drawer (allege and) prove facts which show that the bill was drawn in good faith, and that he was entitled to strict notice. (Note 33.)

Appeal from Harrison.

Henderson & Jones, for appellant. I. By our law it is provided, “that the drawer of any bill of exchange, which shall not be accepted when presented for acceptance, shall be immediately liable for the payment thereof.” (Hart. Dig., Art. 2530.) The mercantile law as to presentment for acceptance remains in force. (Story on Bills of Exchange, Sec. 108, and n. 1; Id., Secs. 227, 228, and n. 1; Id., Sec. 231 and notes.) There is no proof whatever that the draft was ever presented.

II. The charge to the jury is evidently erroneous. (Story on Bills of Exchange, Secs. 234, 276, 367, 369, 375-377, and notes; Chit. on B. of Ex., 467, 468.) It cast the burden of proof of effects on the drawer.

III. The subsequent admission, attempted to be proved, was not alleged. (3 Tex. R., 310; 8 Id., 361; 7 Id., 338;5 Id., 539;1 Id., 447.) And not the least connection appears between the admission and the draft sued on. On the contrary, the terms of the admission are inconsistent with the supposition that it referred to the indebtedness represented by the draft.

LIPSCOMB, J.

This suit was brought by the appellee against the appellant, on a draft given by the appellant's intestate, and set forth in the plaintiff's petition, as follows, i. e.:

+--------------------------------------------+
                ¦$430 95-100.¦MARSHALL, Texas, Sept. 1, 1849.¦
                +--------------------------------------------+
                

At one day's sight, pay to the order of A. Wintercost the sum of four hundred and thirty 95-100 dollars, and charge the same to the account of

Your ob't servant,

D. J. COLE.

To ALFRED KERLEY & CO., Shreveport, La.

In the petition it is alleged that the draft was presented and payment refused, and notice to the defendant. It further alleges, that at the date of the drawing of the draft, Cole had no assets or funds in the hands of Alfred Kerley & Co. to satisfy the same, nor had he any effects in their hands at the time said instrument was presented to them for acceptance and payment, nor had he any effects at any time after said instrument was delivered to petitioner, of which the sum of money therein specified could be paid.

To fix the liability of the drawers it is necessary, on the part of the plaintiff, to prove presentation for payment, refusal to pay, and notice to the drawer, and this legal diligence can only be dispensed with by proof that the drawer had no funds or effects in the hands of the drawees at the time the said draft was payable. Or that he had promised subsequently to pay the debt. There was no proof of presentment and non-acceptance of the draft, nor of non-payment, and there was no allegation in the petition of a subsequent promise, and the liability of the drawer must depend on the question of funds or no funds in the hands of the drawee at the time of presentation or date of payment. Judge Story, in his work on Bills of Exchange, says: “If the drawer has no right whatsoever to draw the bill, or no reasonable ground to expect the bill to be accepted, he is not deemed entitled to notice of the dishonor thereof, for it was his own fault to draw the same; and, correctly speaking, he cannot be said to have suffered any loss by the want of notice. Thus, for example, ordinarily if the drawer draws the bill without having funds in the hands of the drawee, or expectation of funds, or any arrangement or agreement on the part of the drawee to accept the bill, he will not be entitled to notice, and not be discharged by the want thereof. But, although the drawer has no funds in the hands of the drawee, yet, if he has a right to expect to have funds in the hands of the drawee to meet the bill, or has a right to expect the bill to be accepted by the drawee, in consequence of an agreement or arrangement with him, or if upon taking up the bill he would be entitled to sue the drawee, or any other party to the bill, then, and in every such case, he is entitled to strict notice of the dishonor.” (Story on Bills of Exchange, Sec. 311.) The learned and honorable author, in the same section, says that these distinctions may seem, at first view, to be somewhat artificial and not altogether satisfactory. “But it is founded upon the consideration that in the latter case the drawer draws the bill in good faith, and has reasonable grounds to believe that it will be honored; and therefore he may well insist upon a punctual discharge of duty on the part of the holder; whereas in the former cases, it is his own fraud or folly to draw a bill which he has no reasonable ground to expect to be honored; and therefore he...