Lindley v. First Nat. Bank of Waterloo

• Decision Date: 23 January 1889
• Parties: LINDLEY v. FIRST NAT. BANK OF WATERLOO.
• Court: Iowa Supreme Court

76 Iowa 629

41 N.W. 381

LINDLEY

v.FIRST NAT. BANK OF WATERLOO.

Supreme Court of Iowa.

Jan. 23, 1889.

Appeal from district court, Black Hawk county; C. F. COUCH, Judge.

Action on an alleged acceptance. The district court sustained a motion to strike out certain allegations in the petition. Defendant then filed a demurrer to the petition, which was also sustained. Plaintiff appealed.F C. Platt, for appellant.

Boies, Husted & Boies, for appellee.

REED, C. J.

On the 17th of November, 1887, George Barro sent a dispatch from Los Angeles, Cal., to defendant, directing it to transmit $2,000 by telegraph to plaintiff at Los Angeles, and charge the amount to his account, he having at the time a deposit of a larger amount with defendant. On the next day defendant's cashier telegraphed to plaintiff that the bank would pay Barro's draft on it for $2,000. On the receipt of that dispatch at Los Angeles, Barro drew his draft, and delivered it to plaintiff in payment of an indebtedness he was owing him. The following is a copy of the draft:

“$2,000. LOS ANGELES, CAL., Nov. 18, 1887.

At sight pay to order of Hervey Lindley, of Los Angeles, California, two thousand dollars, with exchange on New York, for value recceived, and charge to account of

GEORGE BARRO.

To First National Bank, Waterloo, Iowa.”

The draft was subsequently presented, but defendant refused to accept or pay it. On the same day on which he sent the dispatch, the cashier also wrote to plaintiff that the bank would pay Barro's draft for $2,000, but the letter was not received by plaintiff until after he had taken the draft. On the 28th of November, which was after the draft had been presented and refused, he also wrote to plaintiff that the bank had been enjoined from paying, and that but for such injunction it would have paid it when presented. The foregoing facts are alleged in the petition, and further it is alleged that the exchange provided for in the draft would have amounted to two dollars. The petition is in three counts. The first and second counts are drawn on the theory that the telegram and letter of the 18th of November amounted to an acceptance. The third count states a cause of action on the breach of the contract to accept.

The ground of the demurrer is that the draft drawn is materially different from that which defendant agreed to pay, requiring the payment of a greater sum of money. Counsel for appellee concede that, if the draft had called for the payment of but $2,000, the telegram, which was received by plaintiff before he took the draft, would have amounted to an acceptance; but their position is that, as the draft drawn required the payment of a greater sum, the promise of the bank to pay cannot be regarded as an acceptance of it, and its refusal to pay the amount demanded was not a breach of its contract. The contention of counsel for appellant was that the promise to pay was in effect a general acceptance, and defendant was therefore bound to pay according to the tenor of the draft, and that the request to pay exchange related merely to its tenor. That the acceptor is by a general acceptance bound to pay the bill according to its terms, is certainly true. Edw. Bills, c. 9, § 1. But the term “tenor of the bill,” as used in the books and cases, relates merely to the time and manner of payment. Under a general acceptance the acceptor is bound to pay at the maturity of the bill as fixed by its...