Spear v. Atkinson

• Citation: 1 Ired. 262,23 N.C. 262
• Court: North Carolina Supreme Court
• Decision Date: 31 December 1840
• Parties: SPEAR AND PATTON v. JOHN ATKINSON et al.

1 Ired. 262

23 N.C. 262

SPEAR AND PATTON

v.JOHN ATKINSON et al.

Supreme Court of North Carolina.

December Term, 1840.

Notice by the holder to the drawer of a bill of exchange of a demand on the drawee and a protest for non-acceptance or non-payment is not necessary, when the drawer had no funds in the hands of the drawee, unless the drawer had reasonable grounds to believe that his bill would be honored.

Where a creditor of a firm for goods sold and delivered, had taken the promissory note of the firm in settlement of the account, and had, after the dissolution of the firm, taken a bill of exchange drawn by one of the late partners in his own name, which was protested for want of funds of the drawer, and had delivered up the promissory note, such creditor's original claim was not merged by the promissory note or bill of exchange, but he is entitled to recover for the price of the goods sold and delivered, provided he has surrendered such bill of exchange.

But it is essential to the recovery of the creditor, that he should have surrendered the bill of exchange to the defendants, either before or at the time of the trial.

This was an action of Assumpsit, tried at September Term, 1840, of Pitt superior Court before his honor Judge HALL, when the plaintiffs, under an intimation from the Court, submitted to a nonsuit and appealed to this Court. The facts of the case are stated in the opinion of this Court, delivered by his honor Judge DANIEL.

J. H. Bryan for the plaintiff .

J. R. J. Daniel for the defendant .

DANIEL, Judge.

This was assumpsit for goods sold and delivered. Plea-- non assumpsit. The plaintiffs, on the first of April, 1836, sold goods to the firm of Joseph and John Atkinson, of Pitt county, who were the defendants in this action. The firm of the Atkinsons was dissolved in September, 1836. On the 15th of April, 1837, the two Atkinsons gave to the plaintiffs their promissory note for the price of the goods. Some payments were made on the note, which reduced it to the sum of $500. And on the 18th of June, 1837, John Atkinson, in his own name, drew a bill of exchange in favor of the plaintiffs on Mitchell and Company of New York, for $500 at 60 days, and took up the promissory note. When the bill fell due, it was duly presented for payment, but payment was refused for want of funds of the drawer. No notice was given to the drawer of the dishonor of the bill. There was no proof that the bill had been returned to the drawer, or that the plaintiffs offered to surrender it at the trial.

The plaintiffs were nonsuited and appealed.

Notice need not be given to the drawer of a bill of exchange, when he has no effects in the hands of the drawee, unless he had reasonable...