Mclaughlin's Store v. Copeman

• Decision Date: 24 December 1930
• Docket Number: 5620
• Citation: 294 P. 523,50 Idaho 214
• Court: Idaho Supreme Court
• Parties: MCLAUGHLIN'S STORE and E. E. MCLAUGHLIN, Respondents, v. H. B. COPEMAN, Appellant

294 P. 523

50 Idaho 214

MCLAUGHLIN'S STORE and E. E. MCLAUGHLIN, Respondents, v. H. B. COPEMAN, Appellant

No. 5620

Supreme Court of Idaho

December 24, 1930

BILLS AND NOTES-BILLS OF EXCHANGE-HOLDER IN DUE COURSE-ACCEPTANCE-INSTRUCTIONS-WITNESSES-CORROBORATION-MEMORANDUM.

1. Where defendant denied settlement with T., letter written by him referring to such settlement was admissible to contradict his testimony.

2. Memorandum made at time of alleged settlement showing items of account agreed on was admissible to corroborate testimony that settlement was had.

3. Court's remark that defendant paid order on which check sued on was given held not prejudicial.

4. In action on check given for amount of order, instructions as to bills of exchange, acceptance and holders held not erroneous.

5. Drawee of order waived nondelivery to payee by accepting it and giving drawer check for delivery to payee.

6. Instruction objected to as not showing whether it referred to order or check was not erroneous, where entire charge showed check was referred to.

7. Instruction on hypothesis that delivery of order by drawer to drawee was for benefit of payee held warranted by facts.

8. If drawee accepted order by giving check in payment or holding it for more than twenty-four hours, he became liable though he was not indebted to drawer and there was no consideration (C. S., sec. 6004).

9. Payee of check delivered by drawer to person indebted to payee for delivery to him was "holder in due course."

10. Order by third person on defendant for payment to order of plaintiff was "bill of exchange" (C. S., sec 5993).

11. Acceptance of bill of exchange imports assumption of undertaking.

12. Acceptance of bill of exchange may be implied from conduct clearly indicative of intention to accept, though statute requires acceptance in writing.

13. That defendant on settlement with contractor asked contractor to draw order for payment to plaintiff and gave check to contractor for delivery to plaintiff shows acceptance of order.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, Judge.

Action on check. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

Edward H. Berg and Ezra R. Whitla, for Appellant.

Necessity of delivery of negotiable instruments. (C. S., sec. 5884; Lewis County v. State Bank of Peck, 31 Idaho 244 170 P. 98.)

Holder in due course does not include person to whom instrument is made payable. (C. S., sec. 5919; 3 R. C. L., pp. 1031, 1032; Builders' Lime & C. Co. v. Weimer, 170 Iowa 444 Ann. Cas. 1917C, 1174, 151 N.W. 100; Vander Ploeg v. Van Zuuk, 135 Iowa 350, 124 Am. St. 275, 112 N.W. 807, 13 L. R. A., N. S., 490; Southern Nat. Life Realty Corp. v. People's Bank, 178 Ky. 80, 198 S.W. 543; Long v. Mason, 273 Mo. 266, 200 S.W. 1062; Britton Milling Co. v. Williams, 44 S.D. 464, 21 A. L. R. 1352, 184 N.W. 265.)

Wm. D. Keeton, for Respondents.

No one will contend but that the order given was an inland bill of exchange. The order given to Copeman to pay this money is a bill of exchange within the Negotiable Instrument Act, sec. 126. This is C. S., sec. 5997. Such an order has always been held to be an inland bill. (Plaza Farmers' Union Warehouse & E. Co. v. Ryan, 78 Wash. 124, 138 P. 651; Torpey v. Tebo, 184 Mass. 307, 68 N.E. 223; Lewis Hubbard & Co. v. Morton, 80 W.Va. 137, 92 S.E. 252; American Luxfer Prism Co. v. Bartolicius Star Iron Wks., 152 N.Y.S. 1014; Sheets v. Coast Coal Co., 74 Wash. 327, 133 P. 433; Nelson v. Nelson Bennett Co., 31 Wash. 116, 71 P. 749.)

Prior to the Negotiable Instruments Act, such acceptances had to be in writing to be binding but under the act holding for more than twenty-four hours and not returning constitutes an acceptance. (Uniform Negotiable Instruments Act, sec. 137; this is now C. S., sec. 6004; Wisner v. First Nat. Bank, 220 Pa. 21, 68 A. 955, 17 L. R. A., N. S., 1266; First Nat. Bank v. Citizens' Bank, 163 La. 919, 113 So. 147; Blackwelder v. Fergus Motor Co., 80 Mont. 374, 260 P. 734.)

"The acceptance need not be in any particular form." Milwaukee Corrugating Co. v. Traylor, 95 Kan. 562, 148 P. 653.)

VARIAN, J. Givens, C. J., and Lee and McNaughton, JJ., concur.

OPINION

VARIAN, J.

Appellant Copeman owned certain timber lands in Benewah county and contracted with one Ray Thomas, who was to pay the expenses, to log for him, paying therefor a certain price per thousand feet. In his operations, Thomas incurred indebtedness for labor, groceries, gasoline and other expenses connected with his logging operations. The labor and some other bills were paid by Thomas by orders on Copeman. Thomas purchased provisions from respondent McLaughlin and gave him an order, some time in October, 1929, on Copeman for $ 1,014.02, which included some assigned labor claims amounting to over $ 300, which order appellant did not pay. Thereafter Copeman and Thomas, on November 15, 1929, at Coeur d'Alene, reached a settlement of all their accounts except sums due from Thomas for compensation insurance, the amounts of which were unknown at that time. At Copeman's request, Thomas then drew an order on Copeman to pay respondent the sum of $ 630.69, the amount owed him by Thomas, and Copeman drew his check, payable to the order of McLaughlin, on the American Trust Company bank at Coeur d'Alene, for that sum, and delivered the same to Thomas who handed it to respondent at his place of business at St. Maries after banking hours on the following day. The next day was Sunday, and on that day appellant called respondent on the telephone and advised him that he had made a mistake; that he owed Thomas nothing and would stop payment on the check, which he did.

Respondent deposited the check with the Lumbermen's State Bank & Trust Company at St. Maries on Monday, November 18, 1929, and on the 20th of November, 1929, the check was protested for nonpayment. Respondent then brought this action on the check, alleging, among other matters:

"That said check was given the plaintiff by defendant in payment of a certain written order executed by Ray Thomas directed to defendant, H. B. Copeman, in payment of an indebtedness owed the plaintiff."

Appellant answered and admitted that respondent was engaged in business at St. Maries under the name of McLaughlin's Store; denied the check was given to respondent by appellant, or any other person, in payment of any order executed by Thomas to appellant in payment of any indebtedness due respondent; admitted the check was not paid and that payment had been stopped thereon; alleged that the check was not issued as an acceptance of any order of Thomas previously presented; that the check was issued under the erroneous impression that appellant owed Thomas money; that he discovered on November 17, 1929, that there was in fact no money due Thomas; that said check was issued wholly by mistake and was without consideration. The answer further alleged that Thomas was also of the opinion, at the time the check was issued, that there was money due him from appellant.

The cause was tried to a jury, and resulted in a verdict for the amount of the check and $ 3 protest fees. Defendant Copeman appeals from the judgment.

The first twelve assignments of error relate to the admission of evidence. Appellant had testified in effect that there was no settlement of the accounts between Thomas and himself on the night of November 15, 1929. Over objection, respondent was permitted to introduce, as an exhibit, a letter dated November 16, 1929, from appellant to a George O'Dwyer at St. Maries, in which he refers to O'Dwyer's claim against Thomas. It reads in part as follows:

"Your letter of the 15th at hand, and I will say that I have had a partial settlement with Ray Thomas this week, and I would have willingly given him a cheque to pay you, but I dare not do it until he has a settlement with Eugene Ware, for I had signed an agreement last summer to pay Ware what was due Thomas after the gasoline and groceries and labor had been paid."

The letter was properly admitted to contradict appellant's statements. (22 C. J., p. 905, sec. 1106.)

Thomas testified that there had been a settlement between appellant and himself of all matters except certain premiums due for workmen's compensation insurance, which appellant denied. Over objection of appellant, the court admitted in evidence a memorandum made by Thomas at the time of the alleged settlement showing the items of the account as they had finally agreed upon. The memorandum was admissible as corroboration of Thomas' testimony that there had been a partial settlement between him and Copeman. ( Reviere v. Powell, 61 Ga. 30, 34 Am. Rep. 94; Littieri v. Freda, 241 Pa. 21, 88 A. 82; Taplin v. Clark, 89 Vt. 226, 95 A. 491.)

The remaining assignments of error in this group have been carefully examined and checked with the record and found to be without merit.

Respondent had made several attempts to get admitted in evidence an order by Thomas on appellant to pay respondent $ 1,014.02, the record not showing it had ever been presented to and accepted by appellant. In sustaining an objection to its being again offered near the close of the trial, the court remarked "I don't see the materiality of it; he did pay the other order," referring to the order for $ 630.69, dated November 15, 1929, and for which the check was given, all testified to by appellant. Under the evidence as disclosed by the record, the remark was not prejudicial to appellant; and, at any rate, there was no exception taken to the alleged prejudicial matter at the trial. (38 Cyc., pp. 1324, 1325; 3 C. J., pp. 806, 807, sec. 727; Compton-Gardena Milling Co. v. McCartney, 69 Cal.App. 708, 231 P. 764.)

The...