Stone v. Smith , 30 Tex. 138 ( 1867 )

Willie, J.

It is assigned for error that the court below refused to give the following charge asked by the appellant: “If the defendant promised to pay the amount of the draft to the plaintiff after it was protested, and received the draft back with the knowledge of the fact that it was protested, he thereby waived the want of presentation within a reasonable time.” It is the well-settled doctrine of the English courts, and the weight of American authority is to the same effect, that a party to a bill of exchange, who has been relieved from responsibility thereon through failure of the holder to present it in proper time, may waive the consequences of such neglect. (Chitty on Bills, 499; 3 Kent Com., 113; Story on Bills, 373.)

As where the indorser, after full knowledge that he is discharged by such laches, promises to pay the bill, it will amount to a waiver of the presentment, and bind the promisor to its payment. (Story on Bills, 373.) The-court below, in its general charge to the jury, placed the liability of the defendant on the same footing with that of an indorser. It held him discharged by a failure to present the bill within reasonable time, but did not bind him by any subsequent waiver or promise to pay the bill. It applied the law merchant to his case when beneficial to him, but held it inapplicable when imposing a liability.

The position of the defendant below was not identical with that of an indorser. His obligation arose from a verbal agreement, between himself and the holder of the draft, to pay the amount of the same in case it was dishonored by the drawee. It was not an obligation that could be transferred by the promisor to any future holder of the bill. If we apply the rules of mercantile law to his case, it must be through the analogy which his position bears to that of a guarantor. He certainly is entitled to no more rights, as between himself and the party with whom he contracted, than an indorser or guarantor can claim under similar circumstances. If he was discharged from his original agreement to pay the draft, in case it was dishonored through the laches of the holder in not presenting it within a reasonable time, he could waive his discharge and renew his obligation by a subsequent promise. The charge asked by plaintiff was therefore correct, as an abstract principle of law. It was not included within the general instructions of the court, and should therefore have been given, if applicable to the facts of the case. Without undertaking to determine whether or not there was sufficient proof to show a subsequent promise on the part of the defendant- to pay the hill, it is sufficient to say, that there was some evidence produced upon this subject. The plaintiff' was entitled to have this evidence considered by the jury, under a proper charge, and as we are not prepared to say that the conclusion at which they arrived was entirely uninfluenced by the failure of the court to give the charge asked by plaintiff, their verdict must be set aside.

The judgment of the court below is reversed, and the cause

Remanded.