Lawless v. Temple

• Decision Date: 08 January 1926
• Citation: 150 N.E. 176,254 Mass. 395
• Parties: LAWLESS v. TEMPLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 395

150 N.E. 176

LAWLESS

v.TEMPLE.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 8, 1926.

Report from Superior Court, Middlesex County; Webster Thayer, Judge.

Action by Hazel Lawless against Maurice E. Temple. On report. Judgment for plaintiff.

H. C. Dunbar, of Boston, for plaintiff.

W. R. Bigelow, of Boston, for defendant.

PIERCE, J.

This is an action by the payee against the drawee. The bill is as follows:

‘Natick, Sept. 24, 1923.

‘Maurice E. Temple Please pay to the order of Hazel Lawless $351.50, three hundred fifty one dollars and 50/100.

‘Norris J. Temple.

‘Maurice E. Temple.’

The answer raised the question of the sufficiency of the acceptance under G. L. c. 107, § 155, which is as follows:

‘The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. The acceptance must be in writing and signed by the drawee. It must not express that the drawee will perform his promise by any other means than the payment of money.’

[1] The specific contention of the defendant is that the mere signature of the name of the drawee on the bill cannot fulfill the requirements of the statute that the signification of the assent of the drawee must be in writing and must also be signed. Before the passage of the Negotiable Instruments Act, an oral acceptance of an existing bill of exchange was generally valid in this country and formerly was so in England. Putnam National Bank v. Snow, 172 Mass. 569, and cases cited at page 576, 52 N. E. 1079. The reason for the adoption of the rule requiring acceptance in writing, like the underlying reason for the statute of frauds and similar statutes, ‘is that sound policy requires some substantial and tangible evidence of the contract, and more reliable in its nature than the statement or recollection of witnesses.’ Selma Savings Bank v. Webster County Bank, 182 Ky. 604, 206 S. W. 870, 2 A. L. R. 1136. See Clarke v. Cook, 4 East, 57, 72.

[2] The common practice before the act was to write the word ‘accepted’ on the face of the bill, followed by the signature of the acceptor. Barnet v. Smith, 30 N. H. 256, 64 Am. Dec. 290. But such was not necessary, as Sewall, J., said in Storer v. Logan, 9 Mass. 55, at page 59:

‘An acceptance entered upon a bill generally, or the blank endorsement of the name of the drawee, holds him absolutely as the acceptor; and no conditions or stipulations, which he may have connected with his acceptance, unless expressed upon the bill, will avail him against an endorsee or payee, to whom the bill has been negotiated, and who had received the bill as accepted, without notice of the conditions.’

It was said by Cowen, J., in Spear v. Pratt, 2 Hill (N. Y.) 582, 38 Am. Dec. 600, in considering the legal valuation of the mere signature by the drawee on the bill, under a statute of New York which required the acceptance to be in writing and signed by the acceptor or his agent:

‘The acceptance in question was, as we have seen, declared by the law merchant to be both a writing and signing. The statute contains no declaration that it should be considered less. An endorsement must be in writing and signed; yet the name alone is constantly holden to satisfy the requisition.’

This case was approved in Walker v. Bank of the State of New York, 13 Barb. 636, 638, and followed in Wheeler v. Webster, 1 E. D. Smith (N. Y.) 1; Levy & Cohn Mule Co. v. Kauffman, 114 F. 170, 52 C. C. A. 126;Fowler v. Gate City National Bank, 88 Ga. 29, 13 S. E. 831; Schwartz, Kaufman & Co. v. Barringer, 20 La. Ann. 419;Peterson v. Hubbard, 28 Mich. 197;Mechanics' Bank v. Yager, 62 Miss. 529;Bacon v. Bates, 53 Vt. 30; Leslie v. Hastings, 1 M. & Rob. 119.

The English statutes of 1 and 2 Geo. IV, c. 78, § 2, 19 and 20 Vict. c. 97, § 6, and 41 and 42 Vict. c. 13, § 1, are not...