Thatcher v. Mills

Lipscomb, J.

This is the same suit that was before us at the last Term. (11 Tex. R. 692.) It was reversed on the ground that the draft upon which the suit was brought, was not in evidence before the Jury, nor was its absence accounted for. That evidence was supplied on the last trial.

The Court, at the request of the plaintiffs’ counsel, charged the jury that notice to the drawer is not necessary, when it is shown he has no funds in the hands of the drawee. This charge was not objected to when it was asked and given, and it is too late to raise it now. By the Law Merchant, the charge was wrong; it is however right under our statute. In the Act prescribing the mode of establishing the liabilities of drawers and endorsers of bills of exchange and ¡xromissory notes, the third Section provides, “ 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 “endorser thereof, by instituting suit against such drawer “ within the time and in the manner prescribed by the first and “ second Sections of this Act.” (Hart. Dig. Art. 2530.) The charge was wrong in this, that it rested, the necessity of notice upon the fact of funds in the hands, or no funds : if there was funds, the drawer was entitled to notice, and if not, no notice was necessary; when, by the statute, the non-acceptance of the draft when presented, gave an immediate right of action against the drawer, as the mere fact (unconnected with anything else) of the non-acceptance, gave the right to sue without-notice. So far as it relates to the non-acceptance of the draft, the statute must be regarded as having changed the Law Merchant. Not so, it is believed, if the bill has been accepted. The error of the Court would not have been sufficient to have reversed the judgment, if the charge had been eccepted to ; because there was no controversy but the bill was refused when presented for acceptance ; that was fully proven.

The Court below did not err in the rejection of evidence offered by appellant. It was not admissible under the issues. It related to facts that if true, could not have affected the rights of the holder of the draft. Suppose the draft had been in the hands of the original payee, after he had negotiated it, and acceptance refused, and he had endeavored to procure its payment from the drawer : it could not impair the right of the indorsee, if no compromise nor payment was made. It would be presumed that the object of his possession was to secure the rights of himself and the indorsee to whom it had been indorsed. If an arrangement had been made impairing the rights of the indorsee of the bill, such arrangement would be valid, because the possession of the bill by the first holder would have been regarded as authority to control the matter. Nothing, however was done by the drawee, and in truth the evidence offered of the draft" ever having been in the possession of the payee, after he had negotiated it, amounts to nothing.

There was no error in rejecting the evidence of a judgment obtained against the payee, after he had negotiated the draft. It could not be made available as a setoff against the suit of the indorsee of the bill, endorsed before that judgment was obtained. It could, under no circumstances, have been set off, unless it had been shown that the original payee was still the real owner of the draft sued on, and that the suit was for his benefit. The judgment is affirmed.

Judgment affirmed.