the bill was accepted before its maturity, and within a reasonable time of its date.61 The prima facie presumption arising from the date of the acceptance may be rebutted, for the purpose, for instance, of ousting the Statute of Limitations.62

§ 150. Liability for retention or destruction of bill.

a. Statutory provision.— The Negotiable Instruments Law provides that: "Where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses within twenty-four "hours after such delivery, or within such other period as the "holder may allow, to return the bill accepted or nonaccepted to "the holder, he will be deemed to have accepted the same." 63 This provision seems to have been taken verbatim from the New York Revised Statutes.64

b. Retention of bill.— In recognition of the principle that mere retention of the bill itself is not an acceptance, the words "mere retention of the bill is not acceptance" were added to this section in the Wisconsin act.65 In New York it has been held under the statute that the mere retention, without a demand for a return, or a dissent to the retention, and with the permission of the owner, is not such a refusal as is contemplated by the statute; such refusal is intended as an affirmative act or an act done willfully or wrongfully by the drawee.66 In speaking of the implied acceptance of the bill by a refusal to return it, Mr. Edwards has said:67

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Upon principle, a refusal to return a bill accepted is not the same thing as accepting it; for the act of acceptance is not complete until the bill has been returned to the holder. Until that has been done the drawee has an opportunity of changing his

61. Roberts v. Bethell, 12 C. B. (Eng.) 778.

62. Montague v. Perkins, 22 L. J. C. P. (Eng.) 187.

63. Neg. Inst. L. (N. Y.), § 225. For same section in statuies of other States see Appendix.

64. See N. Y. Rev. Stat., pt. 2, chap. 4, tit. 2, § 11, which was repealed by the Negotiable Instruments Law. A similar provision is included in the statutes of several of the other States. See Kansas Gen. Stat. 1899, § 551; Rev. Stat. of Missouri, 1899, § 448; Code of Alabama, 884.

65. Wisconsin Stat., § 1680k. 66. Matteson v. Moulton, 79 N. Y. 627, affg. 11 Hun (N. Y.), 268.

In the court below it was held that the statute applies to acts of the drawee which are of the tortious character, and imply an unauthorized conversion of the bill by him only, and does not apply to cases where the bill is left willingly in the hands of the drawee by the holder, and no demand made therefor. In the case of Sands v. Matthews, 27 Ala. 399, it was held that where the drawee of the bill of exchange by permission of the payee's agent retains the bill for examination from Saturday until the following Monday, no legal obligation is thereby created against him as acceptor until that time.

67. Edwards on Bills and Notes,

p. 418.

mind, and a right, if he had written an acceptance upon it, to erase it and dishonor the bill. It is, no doubt, equitable enough to hold the tortious act of destroying or appropriating the bill equivalent to an acceptance; but the one is not a contract, while the other is that and nothing else." Where a bill is kept by the drawee a considerable length of time after it is presented to him for acceptance, without returning any answer, it will, independent of the statute, be deemed an acceptance, especially if the drawee is informed when the bill is sent to him that his so keeping it without returning an answer will be deemed an acceptance.68 § 151. Acceptance of incomplete bill.

a. Statutory provision.— The Negotiable Instruments Law provides that: "A bill may be accepted before it has been signed by "the drawer, or while otherwise incomplete, or when it is overdue, "or after it has been dishonored by a previous refusal to accept, or by nonpayment. But when a bill payable after sight is "dishonored by nonacceptance and the drawee subsequently "accepts it, the holder, in the absence of any different agreement, "is entitled to have the bill accepted as of the date of the first 69 presentment." This provision is the same in substance as a provision of the English Bills of Exchange Act.70

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b. Acceptance before completion of bill. The general rule is that a bill of exchange may be accepted prior to its completion. We have already considered cases where a promise to accept a nonexisting bill is equivalent to an acceptance.' If a person writes an acceptance upon a bill which is not yet perfected he will be responsible to a bona fide holder of the bill for value who takes it in its perfected form." The principles which apply in the

68. Harvey v. Martin, 1 Campb. (Eng.) 425; Story on Bills, § 246. In the case of Mason v. Barff, 2 B. & Ald. (Eng.) 26, it was held that the mere detention of the bill that has been sent to the drawee by mail, for acceptance, with the view of waiting for funds or securities to be forwarded by the drawer, is not an implied acceptance; for here the retention of the bill is considered with the rights of both parties, unless the holder chooses to ask for the immediate return of the bill. See Bell v. Pletscher, 32 Misc. 746, 65 N. Y. Supp. 669.

69. Neg. Inst. L. (N. Y.), § 226. For same section in statutes of other States see Appendix.

70. English Bills of Exchange Act, § 18.

71. See § 148, ante.

72. Acceptances on blank bills of exchange. In the case of Bank of Pittsburg v. Neal, 22 How. (U. S.) 107, bills of exchange were accepted on their face by the defendant; such bills were made payable to the order of the payee, who was named therein, but the names of the drawers, the address of the drawees, and the date, amount, and the time and place of payment were in blank. The payee filled up the blanks and had the bills discounted. Such bills were discounted by the bank without knowledge that they were filled up by the

case of a person who indorses or signs as maker a promissory note are applicable to an acceptance written upon the face of blank bills of exchange. The acceptor of a bill of exchange is primarily liable upon the instrument to the same extent as the maker of a promissory note. It is for this reason that the acceptor of a bill of exchange in blank is liable under the same conditions and to the same extent as the maker of a note.73

c. Acceptance after maturity or dishonor.—An acceptance after the maturity of the bill is as effectual to bind the acceptor as though it were made prior to such maturity." There is a close analogy between an indorsement of a bill or note, and an acceptance of the bill, after maturity. In both cases the liability of the parties is the same as though the indorsement or acceptance were made before the maturity of the instrument, except that if the acceptance or indorsement is after maturity the time of payment is declared by law to be within a reasonable time, upon demand, while if the acceptance or indorsement is prior to maturity the time of payment is fixed at a future time by the express agreement of the parties.75 The fact that a bill has been dishonored by nonacceptance or nonpayment does not prevent its subsequent acceptance by the drawee.76 It is well settled that an acceptance, otherwise sufficient, is not the less so by reason of a previous refusal to accept and a protest for nonpayment."

§ 152. Kinds of acceptance; general acceptance.

a. Kinds of acceptance; statutory provision.- The Negotiable Instruments Law provides that: "An acceptance is either gen"eral or qualified. A general acceptance assents without qualifi"cation to the order of the drawer. A qualified acceptance in

payee without authority. The court 74. Leavitt v. Putnam, 3 N. Y. 494, held that the bills were perfected, filled 53 Am. Dec. 322; Berry v. Robinson, up, and negotiated by the correspond- 9 Johns. (N. Y.) 121, 6 Am. Dec. 267; ent of the defendants, to whom the Spaulding v. Andrews, 48 Pa. St. 411. blank acceptances had been indorsed 75. Leavitt v. Putnam, 3 N. Y. 494, as bills of exchange; and for the acts 53 Am. Dec. 322. In the case of Grant of their correspondent in that behalf, v. Shaw, 16 Mass. 344, it was held the defendants were responsible to a that the promise to accept, made after bona fide holder for value, without the bill becomes due according to its notice that the acts were performed tenor, amounts to a promise to pay without authority. Among other cases immediately. to the same effect are:

Van Duzer v. Howe, 21 N. Y. 531; Limestone Bank v. Pennick, 5 T. B. Mon. (Ky.) 25; Moiese v. Knapp, 30 Ga. 942.

73. See § 82 (b), ante.

76. Stockwell v. Bramble, 3 Ind. 428; Williams v. Winans, 14 N. J. L. 339.

77. Exchange Bank v. Rice, 98 Mass. 288; Grant v. Shaw, 16 Mass. 344.

express terms varies the effect of the bill as drawn." 78 English Bills of Exchange Act contains a similar provision."

66

The

79

b. Acceptance to pay at a particular place; statutory provision. -The Negotiable Instruments Law provides that: "An acceptance to pay at a particular place is a general acceptance unless "it expressly states that the bill is to be paid there only and not 66 elsewhere." 80 A similar provision is also contained in the English Bills of Exchange Act.81 The acceptance is, whenever possible, to be construed as general, and not qualified; and a mere memorandum, such as a written date, inconsistent with such construction, has been rejected as being no part of the acceptance.s This provision of the statute is in accord with the authorities.83

§ 153. Qualifed acceptance.

82

a. Statutory provision.- The Negotiable Instruments Law provides that: "An acceptance is qualified, which is:

66

"1. Conditional, that is to say, which makes payment by the acceptor dependent on the fulfilment of a condition therein "stated;

"2. Partial, that is to say, an acceptance to pay part only of "the amount for which the bill is drawn;

"3. Local, that is to say, an acceptance to pay part only at a 46 particular place;

"4. Qualified as to time;

"5. The acceptance of some one or more of the drawees, but 66 not of all." 84 This section is derived from a similar section

of the English Bills of Exchange Act.85 Judge Story defines a

78. Neg. Inst. L. (N. Y.), § 227. 79. English Bills of Exchange Act, $ 19.

80. Neg. Inst. L. (N. Y.), § 228. 81. English Bills of Exchange Act, § 19 (2c.).

82. Fanshaw v. Peet, 26 L. J. Exch. (Eng.) 314; Fitch v. Jones, 5 El. & Bl. (Eng.) 246.

83. Acceptance at designated place. In the case of Cox v. National Bank, 100 U. S. 714, 25 L. Ed. 739, the court said: "Text-writers of undoubted authority state that an acceptance is an engagement to pay the bill according to the tenor of the acceptance, and that a general acceptance is an engagement to pay according to the tenor of the bill. (Bay ley on Bills [5th ed.), 154; Chitty on Bills, 342.) Cases arise where the

drawer of a bill of exchange desig nates in the instrument the place of payment, and the decisions are that in such a case both the drawer and the indorser will be discharged unless the bill be there presented for payment at maturity; but some decisions hold otherwise as to the maker of a note and the acceptor of the bill, the rule being that, unless the restrictive words, 'only and not elsewhere,' are added, no presentment there at maturity or afterward is necessary to charge such a party." See also Wallace v. McConnell, 13 Pet. (U. S.) 136, 10 L. Ed. 98.

84. Neg. Inst. L. (N. Y.), § 229. For same section in statutes of other States see Appendix.

85. English Bills of Exchange Act, 8 19 (2).

conditional acceptance as follows: "An acceptance is conditional or qualified when it contains any qualification, limitation, or condition different from what is expressed on the face of the bill, or from what the law implies upon a general acceptance.'

"86

b. Conditional acceptance. The condition may be either expressed in the acceptance itself or implied from circumstances.7 If a party proposes to make a conditional acceptance only, and commits that acceptance to writing, he must be careful to express fully the condition therein. He is not permitted to use general terms and then exempt himself from liability by relying upon particular facts which may have some connection with the condition expressed for the reason that the particular fact is of itself susceptible of being made a distinct condition.88 When the condition of the acceptance is that payment shall be made when the acceptor is in funds, it is binding upon the parties, and the holder cannot resort to the drawer until the acceptor has refused to pay after he has funds in his hands.89 Where a draft is accepted payable "when I receive funds to the use of the drawer," the acceptor is liable when the moneys have been placed to his credit though he has not taken manual possession thereof.90 Where a

ance, when they did arrive, and were received.

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88. Coffman v. Campbell, 87 Ill. 96. In this case a telegram agreeing to accept a person's draft for a certain sum, for stock," was held not to be a conditional contract, but an absolute undertaking to accept and pay the same; and a party discounting the draft on the faith of such a telegram is entitled to recover the amount of the party so agreeing to accept. See also United States v. Bank of Metropolis, 15 Pet. (U. S.) 377, 396, 10 L. Ed. 781.

86. Story on Bills, § 239. 87. Expression of condition.-Story on Bills, § 239; Sproat v. Mathews, 1 T. R. (Eng.) 182. Justice Bayley, in his work on Bills, chap. 6, § 1, has said: "If a man purpose making a conditional acceptance only, and commit that acceptance to writing, he should be careful to express the conditions therein; for it may at least be doubted, whether parol evidence of such conditions would be admissible; if it were, the onus of proving them would be upon the acceptor, and the proof would be of no avail, if the holder or any person under whom he claims, took the bill without notice of such conditions, and gave a valuable consideration for it. Α 90. Wallace v. Douglas, 16 N. C. conditional acceptance becomes abso- 659, 21 S. E. 387. See also Smith lute as soon as its conditions are per- v. Bates Mach. Co., 182 Ill. 166, formed. Thus an answer by the 55 N. E. 69; Bird v. McElvaine, 10 drawee, that he could not accept until Ind. 40; Kane v. Robertson, 26 La. navy bill should be paid, was Ann. 335; Wintermute v. Post, 24 thought to operate as an absolute ac- N. J. L. 420; Gillespie v. Mather, 10 ceptance upon the payment of the Pa. St. 28; Chattanooga Grocery Co. navy bill. So an answer that the bill would not be accepted, until certain goods against which it was drawn arrived, was held virtually an accept

a

89. Andrews v. Baggs, Minor (Ala.), 173; Campbell v. Pettengill, 7 Me. 126, 20 Am. Dec. 349.

v. Livingston (Tenn. Ch.), 59 S. W. 470. In the case of Perry v. Harrington, 2 Metc. (Mass.) 368, 37 Am. Dec. 98, an acceptance of