Dunavan v. Flynn

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Gray, C. J.
• Citation: Dunavan v. Flynn, 118 Mass. 537 (Mass. 1875)
• Decision Date: 12 October 1875
• Parties: B. F. Dunavan v. J. W. Flynn

118 Mass. 537

B. F. Dunavan v. J. W. Flynn

Supreme Court of Massachusetts

October 12, 1875

Worcester. Contract to recover $ 9 on an account annexed for work and labor. The answer of the defendant contained a general denial and alleged payment. Trial in the Central District Court of Worcester, the judge of which allowed a bill of exceptions in substance as follows:

At the trial, the defendant offered the following order, signed by the plaintiff, drawn on the defendant, and payable to bearer and dated Worcester, June 27: "Please to pay the bearer 9 dollars due to me for work; this woman is my boarding boss and oblige yours," &c. Below were written the words "Acted June 30th, 1874," over the defendant's signature. It appeared in evidence, and was not contradicted that the bearer of the order was Mrs. Cronan; that the order was delivered to her by the plaintiff; that upon the receipt of the order, Mrs. Cronan presented it to the defendant and left the order in the defendant's possession; that the defendant said that he could not pay it then, but that if she could give him three or four days he would pay it; that she gave the defendant the three or four days, and the order was left in the defendant's possession, and there remains, and she never called upon the defendant for payment afterwards. The defendant testified substantially the same, and, upon cross-examination, testified that after the departure of Mrs. Cronan he wrote the words, "Acted June 30th, 1874, J. W. Flynn," upon the face of the order; that he wrote that to make him pay it to Mrs. Cronan; that he intended the words written on the face of the order for an acceptance in writing. On cross-examination, the defendant, in answer to the plaintiff's counsel, said that he did not think his liability to pay the order commenced until after he had written his name on the order.

The judge, against the objection of the defendant, instructed the jury; "If the defendant did not verbally, or in writing, accept the order when presented, but, the order being left with him, he afterwards wrote the acceptance upon it, but did not after such acceptance inform either the drawer or Mrs. Cronan of the fact, but retained the order in his custody, this would not operate as payment of the plaintiff's claim against him."

The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.

In the Superior Court the instructions were affirmed, and the defendant entered the exceptions in this court.

Exceptions overruled.

M. J. McCafferty, for the plaintiff.

F. T. Blackmer, for the defendant.

Gray, C. J. Wells & Ames, JJ., absent.

OPINION

Gray, C. J.

An acceptance of a bill of exchange, or draft for the payment of money, may be oral, or may be implied from acts, such as detention for a long time, contrary to the usage of the parties and under such...