Bailey & Co. v. Southwestern Veneer Co. , 136 Ark. 583 ( 1918 )

Smith, J.

Bailey & Company, the appellants, by this suit seek to charge the Veneer Company as acceptors of an inland bill of exchange. It is not contended that the acceptance was in writing, as required by section 132 of the Negotiable Instrument Act, Acts 1913, page 260. But it is insisted that, after the bill was verbally accepted, it was wilfully destroyed. Upon a former trial, a verdict was directed in favor of the Veneer Company, which was reversed by us upon appeal. Bailey & Company v. Southwestern Veneer Co., 126 Ark. 257.

The opinion in that case recited the facts to be that the testimony showed an oral acceptance ,and the unexplained destruction of the bill of exchange, and the opinion applied the law to the facts of that case. But, upon the remand and retrial of the cause, the court below interpreted our opinion to mean that there must be both a verbal acceptance and a wilfull destruction of the bill to fix liability thereon, and so charged the jury. This was error, and the judgment must be reversed on that account.

The opinion on the former appeal recognized the fact that .a, verbal acceptance was not sufficient, as the statute so provides, but it was pointed out that the statute also provides that the drawee who destroys a bill will be deemed to have accepted the same. In the former opinion we said: ‘‘An accidental destruction of the bill could not amount to an acceptance, but a wilful destruction of the bill would. Under all the circumstances in this case, we are of the opinion that the question of fact as to why the order was destroyed should have been submitted to the jury under proper instructions.”

At the trial from which the present appeal is prosecuted, there was testimony to the effect that appellee had agreed to accept the order only to the extent to which it was indebted to the drawer of the bill, that sum being less than the face of the bill, and that after this limited acceptance the bill was accidentally lost by it. As this the bill had been wilfully destroyed should not have been submitted only on the question of the intentional destruction, but the right to recover upon a finding that the bill had been wilfully destroyed should not have been conditioned upon the additional finding that it had also been verbally accepted.

Reversed and remanded.