Jackson v. Packer , 13 Conn. 342 ( 1839 )

Waite, J.

1. The bill of exchange in this case, was made payable at either Bank, in Providence, and demand of payment was made at one of them. The defendants say, this was not sufficient, because the plaintiff had not previously given the defendants notice, where the demand would be made. It seems, that the legal construction given to such contract, is, that the bill will be paid at either of the banks which the holder may select. North Bank v. Abbot,, 13 Pick. 465. Beeching & al. v. Gower, Holt, N. P. 313. With respect to the previous notice, it is not required by the express terms of the bill; nor has any local usage upon that subject been shewn; and we know of no rule of law requiring it. If the parties wish for more certainty as to the place of payment, let them be more explicit in the bill.

But further, this action is not against the drawer, or an indor-ser, but against the acceptor. The rule is well settled, that in a suit against the acceptor of a bill, or the maker of a promissory note, payable generally, it is not necessary to aver or prove any presentment for payment. The action itself, is a sufficient demand. So it has been determined, by this Court, that in an action against the maker of a note, payable at a particular place, a demand at the place specified, need not be averred in the declaration. Eldred v. Hawes, 4 Conn. Rep. 465. The same doctrine has very recently been recognized, by the supreme court of the United States, upon a review of most of the authorities, English and American. Wallace v. McConnel, 13 Peters, 136. The same rule has been adopted in New-York, Massachusetts, and in various other states in the Union, and may now be considered as the law in the United States upon this subject. Caldwell v. Canady, 8 Cowen, 271. Payson v. Whitcomb, 15 Pick. 212. Carley v. Vance, 17 Mass. Rep. 389. Ruggles v. Patten, 8 Mass. Rep. 480. Weed v. Van Houten, 4 Halst. (N. J.) 189. And in this respect, there is no distinction between the acceptor of a bill, and the maker of a promissory note. Wallace v. Me-Connel. Foden & al. v. Sharp, 4 Johns. Rep. 183. Wolcott v. Santvoord, 17 Johns. Rep. 248.

The instruction, therefore, given by the court to the jury, that the plaintiff was not precluded from a recovery in consequence of not having given the defendants notice that payment would be demanded at the Blackstone Canal Bank, was strictly correct and proper.

2. The plaintiff claims, that the court erred, in not rejecting the testimony of the drawer. It is not claimed, nor can it be with propriety, that he was not a competent witness, unless it be shown, that there was a balance of interest in favour of the party calling him. For it is now well settled,in this state and in England, that the drawer of a bill is a competent witness, in a suit between the indorsee and acceptor, unless there are circumstances in the case shewing a greater interest in favour of one party than the other ; (Townsend v. Bush, 1 Conn. Rep. 260. Jordaine v. Lashbrooke, 7 T. R. 104. Brard v. Ackerman, 5 Esp. Rep. 119. Dickinson v. Prentice, 4 Esp. Rep. 32. Copley v. Corner, 4 Car. P. 21.) although it is admitted, that this principle has not been adopted, by the supreme court of the United States, nor in Massachusetts, New-York, and several other states. Bank of the Metropolis v. Jones, 8 Peters, 12. Bank of the United States v. Dunn, 6 Peters 57. Churchill v. Suter, 4 Mass. Rep. 156.

But the ground of the objection is, that the drawer, in case of a recovery by the plaintiff, would be liable to the defendants, not only for the debt that might be recovered, but for the costs of the present suit. The bill in question was not accepted for the accommodation of the witness, but of the defendants ; and there is no agreement, express or implied, that he should pay the bill, and save the defendants harmless. Nor do we discover anything in his conduct justly making him liable for the costs of the suit, if the defendants should be subjected.

The bill was accepted, and placed in the hands of the plaintiff, for the purpose of enabling him to get it discounted^ and to pay over the avails to the defendants. When he delivered it, with other paper, to the plaintiff, upon his offer to get them discounted at the Canal Bank, he was acting within the scope of his authority. Had the plaintiff paid over the avails of the bill to the witness, the witness would have become immediately liable to the defendants for the money so received: and they could have sustained a suit against him for it. In Bagnull v. Andrews, one Woodbridge drew a bill on the defendant, to whom he had been sending goods for sale ; and the defendant accepted it; neither party knowing the state of account between them. It turned out that at the time of the acceptance, the drawer was indebted to the defendant. The drawer afterwards indorsed the bill to the plaintiffs. The court held, that the bill so drawn and accepted, could not be treated as an accommodation bill; that there was no implied undertaking, on the part of the drawer, to indemnify the acceptor against the costs of the action ; and he was, therefore, a competent witness. 7 Bing. 217.

But it is said, that the drawer in this case, did not, at the time of the transfer to the plaintiff, disclose the nature of the transaction between him and the defendants. But there was nothing in the arrangement with the plaintiff, requiring that disclosure. The bill was delivered to the plaintiff for the purpose of enabling him to get it discounted, and pay over the avails to the drawer. It could make no difference with the plaintiff, so far as the execution of that-arrangement was concerned, whether the bill belonged to the drawer, or to the defendants. He would have been just as safe, in the one case as in the other. The drawer was authorized to receive the proceeds of the bill; and payment to him would have been as effectual as if made to the defendants.

3. The instruction given to the jury respecting the plaintiff’s right to recover, was entirely correct. In consequence of the transfer of the two bills and note to the plaintiff, he was induced to pay the drawer 975 dollars. He had, therefore, an interest in those securities, to that extent. But the jury have found that he has been repaid that sum. If he is permitted to recover more, it must be for the benefit of the drawer. But nothing was ever due the drawer from these defendants. Why then should the plaintiff recover ? It is said, that his object is, to indemnify himself for his indorsement of the bill drawn upon Jesup, Swift fy Co. But was he induced to make that indorsement in consequence of the transfer of this bill to the plaintiff? That is not pretended. What equity is there in allowing the plaintiff to recover of the defendants that which they do not owe, either to the plaintiff or the drawer ? We can discover none, Had the plaintiff paid the drawer the full consideration of the bill, he would be entitled to recover the full amount of the defendants. But he has in effect paid noconsideration, the money advanced having been re-imbursed from the other securities. In justice, therefore, he ought not to recover.

4. With respect to the finding of the jury, we think, that upon the evidence relating to the Fenner note, their verdict is right. And as to the question whether the S. Newton Dexter note was received inpayment of his acceptance, or only as collateral security, there was much conflicting testimony; and we do not discover such a preponderance in favour of the plaintiff’s claim, as will justify us in granting a new trial, especially as it appears, that the plaintiff had so far appropriated the note to his own use, as to cause it to be discounted for his own benefit. Bulkley v. Waterman, 13 Conn. Rep.

For these reasons, we think a new trial ought not to be granted.

The other Judges were of the same opinion.

New trial not to be granted.