Carson v. Russell & Schott , 26 Tex. 452 ( 1863 )

Wheeler, G. J.

The bill being payable at a certain period after date, it was not necessary to present it for acceptance. It was the right of the holder to do so, and thus, in case of acceptance, obtain the additional security of the acceptor, or, in case of refusal, fix the liability of the drawer immediately;* If he did not choose to exercise his right of presenting the bill for acceptanee, he was bound to present it for payment when due. But if, upon presentment for acceptance, the bill was dishonored by the refusal of the drawee to accept, no presentment or demand for payment was necessary. (Story on- Bills, §§ 366, 321.)

By the law merchant, though the holder was not bound to present the bill for acceptance, yet, if he did so, upon its dishonor by the refusal of the drawee to accept, he was bound to have recourse to protest and notice to fix the liability of the drawer. But, by statute, (O. & W. Dig., art. 96,) it is provided that “the drawer of any bill of exchange which shall not be accepted when presented for acceptance, shall be immediately liable for the payment thereof; and the holder of such bill may secure and fix the liability of any indorser thereof, by instituting suit against such drawer, within the time and in the manner prescribed by the first and second sections of this act.” And according to the construction placed upon the statute in Thatcher v. Mills, (14 Tex. R., 13,) the refusal of the drawee to accept had the effect to fix the liability of the drawer immediately, without the necessity of protest and notice, or suit.

Such being the consequence of the refusal of the drawee to-accept, what was the effect of the waiver of acceptance by the drawer? In Scott v. Greer, (10 Penn. R., 103,) it was held, that the waiver of protest by an indorser puts him in the same situation as if the protest had been made and proved. And in Day v. Ridgway & Budd, (17 Penn., 303,) it was held, that waiver of notice of protest puts the indorser in the same situation as if the protest had been made and notice of it duly given to-him; and where there is no contradictory evidence as to the waiver, it is proof of demand and refusal.

On the principle of these decisions, does not the waiver of acceptance by the drawer put him in the same situation as if the bill had been presented to the drawee and not accepted by him ? If this was not the intention, why waive acceptance? It was not necessary without the waiver to present the bill for acceptance.

It is suggested that it might have become the duty of the holder, on being required by the drawer, to present the bill for acceptance,, and that it was intended by the drawer to waive that right. This-seems scarcely probable. The drawees and payees appear to have resided in Philadelphia, and the drawer in Texas; and it seems scarcely probable that the parties would have thought it necessary to provide against the possible contingency that the drawer in Texas should require the payees in Philadelphia to present the bill for acceptance there before its maturity, or that the latter would have sought to provide against a possible event which would subject them, if the requisition were made, to so little inconvenience. It seems more reasonable to conclude that the waiver was intended to confer a substantial benefit on the payees; and that it was intended to place the drawer in the same situation as if the bill had been presented and acceptance refused by the drawees, and thus fix the liability of the drawer immediately.

It is objected, that the “acceptance waived” is no part of the bill, and that there is no evidence that it was the act of the drawer. It was written across the face of the bill, which was made a. part of the petition; and it was averred by the plaintiffs that the drawer waived the acceptance of the bill. The objection comes too late. It ought to have been made when the bill was produced in evidence upon the trial.

It is true, the petition does not contain sufficient averments to charge the defendant, either as the drawer of the bill, or as having written the waiver of acceptance, if the petition had been excepted to on these grounds. But the insufficiency of the petition was not taken advantage of by a demurrer, or exceptions relied on, or by motion in arrest of judgment; nor has it been assigned as error. And as it is matter susceptible of being cured by amendment, it is not an error of which the court will take notice, of its own motion, as a ground for reversing the judgment. The “acceptance waived” having been written across the face of the bill, and made a par| of the petition, and no objection having been taken to its production in evidence, is, we think, now to be deemed a part of the bill in evidence before the jury. We are qf opinion that there is no error in the judgment, and it is affirmed.

Judgment affirmed..