Gallagher v. Black

Cutting, J.

At the trial one question submitted to the jury was, whether the defendant had accepted the order. And under the circumstances it was a question proper for their consideration. The alleged acceptance was ambiguous on its face, and could be explained so as to ascertain the true intention of the parties by parol testimony, which was for such cause properly admitted.

The instructions of the judge to the jury, in substance, were — “ that if the defendant did not accept, but refused to accept, and it was so understood between him and the payee, still as against a tona fide holder for consideration, if he so carelessly obliterated the word aforesaid, that such holder without notice, would, while acting with ordinary care and prudence, have been deceived as to said intention to obliterate, from the appearance of the order; in such case defendant would be bound as much as if he had actually intended to accept and had accepted. That in such case, there being no evidence on the subject, as to when or how the plaintiff got the order, it being now in his possession, the presumption would be that he became the owner at the date of the acceptance, and for a valuable consideration.”

This charge embraces one error, which is as to the legal presumption. The evidence tended to show, and the charge assumed, that the acceptance would have been ineffectual in the hands of the original payee. In such event proof, to be produced by the holder, must be substituted for the- presumption. This doctrine is now well established by reason and authority. Munroe v. Cooper, 5 Pick. R., 412; Aldrich v. Warren, 16 Maine R., 465; Perrin v. Noyes, 39 Maine R., 384; Bissill v. Morgan, 11 Cush. R., 198.

Exceptions sustained, and a new trial granted.