Wells v. Brigham ( 1850 )

Shaw, C. J.

This is assumpsit by the payee against the acceptor, on a draft for $30, drawn by one George Clay upon the defendant, payable to the plaintiff. The first question is, whether this is a cash draft, or inland bill of exchange; if it is, the nature of the draft answers most of the questions which have been discussed. It is not payable to the order of the payee, but that is not essential to make it a bill of exchange. The King v. Box, 6 Taunt. 325. The parties are all specially named, the drawer, the drawee, and the payee. The draft is payable at a time fixed, to wit, on demand; on no contingency or condition, but absolutely; for a sum certain, out of no special fund, but by the drawee generally. The fact, that the draft indicates a debt due to the drawer as the consideration, between drawer and drawee, does not make it the less a cash order or draft. The drawee, by his acceptance, admits such debt, and is estopped to deny it, as against the payee. It seems to us, therefore, that this document possesses the characteristics of a cash draft, and upon a general acceptance thereof, which may be by parol, binds the drawee to the holder. The acceptor has no right to require proof of consideration, as between the drawer and the payee; the draft itself is proof of the holder’s title. The statement of the origin of the debt, the purchase of a wagon, did not make it the less payable absolutely, and at all events, and not conditionally or out of a particular fund. Hausoullier v. Hartsinck, 7 T. R. 733.

This being a cash draft accepted, we are of opinion, that it may be given in evidence on a count for money had and received. The acceptance is an admission, that the drawee has funds of the drawer, which, at his request, the drawee, by his acceptance, holds to the use of the payee.

The apology by the defendant, for not paying the draft, and stating that he would not be able to pay it, till he got returns from his brooms, did not constitute a conditional acceptance; it was not the act relied on as an acceptance. It was evidence, by the drawee’s admission, that it had been previously accepted and was then due, which was proper for the jury.