bill is accepted conditioned upon the acceptor having funds of the drawer in his hands, the holder of the bill must show affirmatively that funds of the drawer were in the hands of the acceptor.91 If the acceptance is conditional the acceptor will not be liable thereon until the fulfilment of the condition.92 When a draft is accepted subject to a certain condition the acceptor cannot either by his own act, or by an act in collusion with the drawer, defeat the condition, and defend the action upon the ground of a nonfulfilment of the condition.93 Orders or drafts are frequently accepted conditioned upon the completion of a building or other construction being erected under a contract. In such cases the acceptor becomes absolutely liable upon the completion of the work or a compliance with the condition of the acceptance based upon such completion.9+ 95 c. Qualified as to time.-Where an acceptor includes in his acceptance a provision that the bill shall be payable at some time other than that specified in the bill it is a qualified acceptance. Where an acceptance is made in accordance with the terms of a contract referred to in the acceptance, it will be deemed payable according to the terms of the contract, and if the time of payment is different from that specified in the bill, the acceptance will be qualified. Where no time of payment is specified in the bill, 96 an order to pay $200 out of the first money of the drawer received by the drawee on account of a newspaper establishment was held to bind the acceptor to pay from time to time, on reasonable request, as the money is received by him. 91. Marshall v. Clary, 44 Ga. 511; Atkinson v. Marks, 1 Cow. (N. Y.) 691; Mason v. Graff, 35 Pa. St. 448; Carlisle v. Hooks, 58 Tex. 420, where an order payable out of a specific fund is accepted " when there is money in my possession from such fund," the acceptor may show, in an action against him thereon, that he has never received any money from such a fund belonging to the drawer. Hunt v. Williams, 15 R. I. 595, 10 Atl. 645. 92. Cummings v. Hummer, 61 Ill. App. 393; Liggett v. Weed, 7 Kans. 273; Schackeford v. Hooker, 54 Miss. 716; Ford v. Angelrodt, 37 Mo. 50, 88 Am. Dec. 174; Pearson v. Gooch, 69 N. H. 571, 45 Atl. 406. 93. Herter v. Goss & Edsall Co., 57 N. J. L. 42, 30 Atl. 252; Risley v. Smith, 64 N. Y. 576. 94. Hughes v. Fisher, 10 Colo. 383, 15 Pac. 702; Baker v. Dobbins, 87 Ga. 545, 13 S. E. 524; Lord v. Advent Chris. Soc., 156 Mass. 387, 36 N. E. 817; Robbins v. Blodgett, 124 Mass. 279; Jenk v. Wells, 90 Mich. 515, 51 N. W. 636; Beardsley v. Cook, 143 N. Y. 143, 38 N. E. 109; s. c., 154 N. Y. 707, 49 N. E. 126; Merserea v. Villari, 74 Hun (N. Y.), 59, 26 N. Y. Supp. 135; Quinn v. Aldrich, 70 Hun (N. Y.), 205, 24 N. Y. Supp. 33; Duffield v. Johnson, 96 N. Y. 369; Hazelton County v. Union Imp. Co., 143 Pa. St. 537, 22 Atl. 906. 95. Van Strum v. Liljengren, 37 Minn. 191, 33 N. W. 555, in which case the words "Payable the fifteenth day of May, 1883," written and signed by the drawee upon a bill of exchange drawn upon him, were held to constitute a qualified acceptance. See also Wiley v. Brice, 70 N. C. 422; Green v. Raymond, 9 Neb. 295. 96. Kellogg v. Lawrence, Lalor's Supp. (N. Y.) 332, in which case the court says: "A consideration for the acceptance of a bill of exchange is, an acceptance to pay at a future date constitutes a qualified acceptance.97 66 d. Rights of parties as to qualified acceptance.- The Negotiable Instruments Law provides that: "The holder may refuse to "take a qualified acceptance, and if he does not obtain an unquali"fied acceptance, he may treat the bill as dishonored by nonacceptance. Where a qualified acceptance is taken, the drawer "and indorsers are discharged from liability on the bill, unless "they have expressly or impliedly authorized the holder to take a qualified acceptance, or subsequently assent thereto. When "the drawer or indorser receives notice of a qualified acceptance, "he must within a reasonable time express his dissent to the "holder, or he will be deemed to have assented thereto." 9 The English Bills of Exchange Act contains a similar provision." Under the mercantile law as it exists in France and Germany, the holder cannot refuse a partial acceptance and he can only protest as to the balance remaining unpaid.1 The English act limits the application of this section by providing that it does not apply to a partial acceptance, whereof due notice has been given. The omission of this provision from the Negotiable Instruments Law makes it necessary, in the case of a partial acceptance, in order to bind the drawer and indorsers, to secure their authority This evidently changes the rule as declared by some or assent. authorities.2 97. Hasey v. White Pigeon Beet Sugar Co., 1 Doug. (Mich.) 193. 98. Neg. Inst. L. (N. Y.), § 230. For same section in statutes of other States see Appendix. 99. English Bills of Exchange Act, § 44. 1. French Code, arts. 119, 120; German Exchange Law, arts. 25-28. 2. Mr. Daniel says: "If a bill is ordinarily, to be implied and need not be alleged or proved, but an accept ance may be made in such terms as to show what the consideration was, if any existed, or that the undertaking was wholly gratuitous. This acceptance was qualified conditionally. It was not an engagement to pay at the time specified in the bill, nor absolutely to pay at any time; but it was an acceptance according to the pro- accepted as to part of the amount visions of a particular contract. We drawn for, it is a good acceptance_as must, therefore, resort to that con- to the part payable in money. tract to ascertain what the defend- holder may effect a partial acceptant's engagement was; to learn the ance, but he will discharge the drawer time of payment, if one is therein and indorsees unless he protests as to specified and fixed, or the contingency the residue." Daniel on Negotiable which was to fix the time and the Instruments, § 516. See also Parsons extent of the acceptor's liability." on Notes and Bills, 312. The CHAPTER XV. Protest of Bills of Exchange. § 154. Protest of Foreign Bill Necessary. a. Statutory provision. b. Why protest is required. $155. Protest, how Made. a. Statutory provision. b. Requirements generally. c. Certificate of protest as evidence. 156. By Whom Protest to be Made. a. Statutory provision. b. In general. $157. When Protest to be Made. § 158. Where Protest to be Made. $159. Special Statutory Provisions as to Protest. a. Protest for both nonacceptance and nonpayment. d. When protest dispensed with. § 154. Protest of foreign bill necessary. a. Statutory provision.- The Negotiable Instruments Law provides that: "Where a foreign bill appearing on its face to be "such is dishonored by nonacceptance, it must be duly protested "for nonacceptance, and where such a bill has not previously "been dishonored by nonacceptance is dishonored by nonpayment, it must be duly protested for nonpayment. If it is not "so protested, the drawer and indorsers are discharged. Where a bill does not appear on its face to be a foreign bill, protest "thereof in case of dishonor is unnecessary." 993 This provision is also contained in substantially the same form in the English 3. Neg. Inst. L. (N. Y.), § 260. For same section in statutes of other States see Appendix. 6 Bills of Exchange Act.* The provisions of this chapter have reference more particularly to the protest of foreign bills of exchange because of the fact that an inland bill does not require a formal protest. A protest means, properly speaking, a solemn declaration by the holder against any loss to be sustained by nonacceptance or nonpayment; but in the popular sense it includes all the steps, after the dishonor of negotiable paper, necessary to charge a party to pay. In its latter sense we have already considered the protest of negotiable paper in the chapter on Notice of Dishonor. It may be well to observe here, however, that a protest of all negotiable paper by a notary public is authorized as a very proper mode of giving notice of dishonor. Its advantages are apparent in view of statutes which exist in New York and other States making the certificate of a notary prima facie evidence.8 b. Why protest is required. The formal protest of a foreign bill is required because by the law of most foreign nations a protest is essential in case of the dishonor of any bill and for the sake of uniformity in international transactions. All foreign bills should be protested. Besides, a protest affords satisfactory evidence of dishonor to the drawer, who, from his residence abroad, might experience a difficulty in making proper inquiries on the subject and be compelled to rely on the representation of the holder. It also furnishes the indorser with the best evidence to charge and anticipate the party abroad, for foreign courts give credit to the acts of a public functionary, in the same manner as a protest under the seal of a foreign notary is evidence, in our courts, of the dishonor of a bill payable abroad.10 We have 9. Borough v. Perkins, 2 Ld. Raym. (Eng.) 993; Trimby v. Vignier, 1 Bing. N. C. (Eng.) 151. lic is, that this officer is one of great public distinction and consequence in the civil law countries, before whom and in whose books, instruments of the most solemn nature are usually entered; and certified copies of those instruments are generally deemed of such high authority as to be ordinarily admissible in courts of justice in those countries." A notarial certificate of protest is competent without further proof. This has even been so held in respect 10. Byles on Bills (16th ed.), p. to foreign bills. See Pierce V. 218. Judge Story says in his work Inaseth, 106 U. S. 546; Brown v. on Bills of Exchange, § 277: "The Philadelphia Bank, 6 Serg. & R. (Pa.) reason why the instrument is re- 484. For this purpose, the different quired to be made by a notary pub- States of the Union are deemed foreign already considered the question as to whether a bill drawn in one State upon a person residing in another is a foreign bill, and have seen that in most jurisdictions such a bill is deemed a foreign bill.11 It would seem to follow, therefore, that such a bill must be formally protested for nonacceptance or nonpayment as provided in this chapter. 12 § 155. Protest, how made. 66 a. Statutory provision.- The Negotiable Instruments Law provides that: The protest must be annexed to the bill, or must "contain a copy thereof, and must be under the hand and seal of "the notary making it, and must specify: "1. The time and place of presentment; "2. The fact that presentment was made and the manner "thereof; "3. The cause or reason for protesting the bill; "4. The demand made and the answer given, if any, or the "fact that the drawee or acceptor could not be found." 13 This provision is similar in some respects to the rule contained in the English Bills of Exchange Act.14 b. Requirements generally. The general rule is that a protest must contain a copy of the instrument. This requirement will be complied with by annexing to the protest a copy of the bill. Where a copy of the bill is included in the protest slight mistakes or variance of letters, or even words, when the substance is retained will not vitiate the protest. 15 The signature of the notary to the protest need not be written; it is sufficient if it be printed.16 It has been held that the notarial seal is not essential to give validity to a protest." There is, however, some doubt about the 17 to each other, so that a notarial certificate of protest under seal is good on mere production. With the aid of the statute, if not without, courts may take judicial notice of the seal of the notary public, and as a next step may take notice of his signature also. Johnson v. Brown, 154 Mass. 105, 27 N. E. 994. 11. See § 6 (a), ante. 12. Phoenix Bank v. Hussey, 12 Pick. (Mass.) 483. 13. Neg. Inst. L. (N. Y.), § 261. For the same section in statutes of other States see Appendix. 14. English Bills of Exchange Act, § 51 (7), which provides that, "A protest must contain a copy of the bill, and must be signed by the notary making it, and must specify (a) the person at whose request the bill is protested; (b) the place and date of protest, the cause or reason for protesting the bill, the demand made, and the answer given, if any, or the fact that the drawee or acceptor cannot be found." 15. Denniston v. Stewart, 17 How. (U. S.) 606; Moorman v. State Bank, 3 Port. (Ala.) 353; Decatur Bank v. Hodges, 9 Ala. 631. 16. Bank of Cooperstown v. Woods, 28 N. Y. 561. 17. Bank of Kentucky v. Pursley, 3 T. B. Mon. (Ky.) 238; Lambeth v. Caldwell, 1 Rob. (La.) 61. |