Ryalls v. Moody , 102 Ala. 519 ( 1893 )

HEAD, J.

The court erred .in refusing to admit in evidence the draft of appellants on, and accepted by, J. P. Williams & Co. That the draft was such as the parties contracted should be given is conclusively shown by the fact that the appellees received it and presented it to Williams & Co. for acceptance. By the terms of the contract, appellees were entitled, in order to bind them to the trade, to have the unconditional acceptance of the draft by Williams & Co., within a few days. It was accepted within time, but the acceptance was not absolute, but conditional or qualified. This authorized appellees to reject it, if they had seen proper to do so. But so far as appears, they did not reject it. On the contrary, they received the draft, with the acceptance thereon, in due season, and retained it in their possession until the trial of this cause, when they produced it in court, on demand. It was competent for them to waive the conditional character of the acceptance, and this they did by retaining the draft in their possession an unreasonable length of time, unless, in some other efficacious way, they duly made known their repudiation of it, on account of the irregularity. The record discloses nothing of the kind on their part. Their retention of thd draft until the trial raises the presumption of waiver of the irregularity which it is upon them to overcome.

Reversed, non-suit set aside, and cause remanded.