ance is excused and a bill may be treated as dishonored by nonacceptance in either of the following cases: (1) Where the drawee is dead or has absconded, or is a fictitious person or person not having capacity to contract by bill. (2) Where, after the exercise of reasonable diligence, presentment cannot be made. (3) Where, although presentment has been irregular, acceptance has been refused on some other ground.15 Acceptance may be waived, in which case presentment for acceptance is unnecessary.18 § 3411. Acceptance-Necessity for.-The acceptance of a bill is the signification of the drawee of his assent to the order of the drawer. The acceptance in many jurisdictions must be in writing and signed by the drawee. It must not express that the drawee will perform his promise by any other means than the payment of money." By the law merchant, an acceptance could be oral or written, and if written, could be on the bill itself or on a separate paper. Acceptance by telegram has been held sufficient.18 It is necessary that the drawee accept the bill in order to create a liability on his part, but such is not the case where the drawee is himself the drawer, the bill in such case being in effect the note of the drawer.1o A bit of itself does not operate as an assignment of the funds in the hands of the drawee available for the payment thereof, and the drawee is not liable on the bill unless and until he accepts the same.20 The authorities are in conflict on the general proposition whether a draft operates as an assignment of the funds in the hands of the drawee. Some courts hold that if the drawing is for the entire sum due it operates as an assignment. Others hold it an assignment when the drawing is for part of the 21 18 North Atchison Bank v. Garretson, 51 Fed. 168, 2 C. C. A. 145. 10 Gray Tie & Lumber Co. v. Farmers' Bank, 109 Ky. 694, 22 Ky. L. 1333, 60 S. W. 537; Cunningham v. Wardwell, 12 Maine 466. 20 Neg. Inst. Law, § 211. 21 Wheatley v. Strobe, 12 Cal. 92, 73 Am. Dec. 522; First Nat. Bank v. Dubuque, S. W. R. Co., 52 Iowa 378, 3 N. W. 395, 35 Am. Rep. 280; Cutts v. Perkins, 12 Mass. 206; Bank of Commerce v. Bogy, 44 Mo. 13, 100 amount due.22 A check, of itself, according to the weight of authority does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.23 3412. By whom acceptance made.-In general, the acceptance of a bill should be made by the drawee named therein.24 But in case no drawee is named in the bill, a third person may make himself a drawee by accepting the bill in proper form.25 If the drawees are partners it has been held that one may accept for all;26 but where there are two or more drawees who are not partners, the acceptance should be by all,27 unless the several drawees are named in the alternative, when acceptance may be by either of them. A bill may be accepted by the agent of the drawee, but proof of authority of such agent may be required by the holder, and he may even refuse to take such acceptance.28 § 3413. Manner of acceptance.-As provided in the Negotiable Instruments Law, acceptance should be in writing and signed by the drawee, and must not express that the drawer will perform his promise by any other means than the payment of money.29 The holder of a bill presenting the same for acceptance may require that the acceptance be written on the bill, and if such request is refused, may treat the bill as dishonored. If an acceptance be for accommodation or in the nature of an agreement to answer for the debt of another, the statute of 30 Am. Dec. 247; Corser v. Craig, 1 First Nat. Bank v. Coates, 3 Mc- "Neg. Inst. Law, § 325. See notes 9 L. R. A. 109; 2 L. R. A. (N. S.) 83. Craig V. Matheson, 32 Nova Scotia 452; May v. Kelly, 27 Ala. 497. 24 Wheeler v. Webster, 1 E. D. Smith (N. Y.) 1; Watrous v. Halbrook, 39 Tex. 572. 25 Markham v. Hazen, 48 Ga. 570; Pannell v. Phillips, 55 Ga. 618; Tutt Smith v. Milton, 133 Mass. 369; 28 Alabama Coal Min. Co. v. Brainard, 35 Ala. 476; Rogers v. Union Stone Co., 134 Mass. 31; United States v. Metropolis Bank, 15 Pet. (U. S.) 377, 10 L. ed. 774. In Schmittler v. Simon, 101 N. Y. 554, 5 N. E. 452, 54 Am. Rep. 737, it was held that an executor or administrator is without authority to bind the estate of his decedent by an acceptance. See also, to same effect. Roscoe v. McDonald, 91 Mich. 270, 51 N. W. 939. 31 frauds will require it to be in writing; but in the absence of some other statutory intervention, an unequivocal parol promise to accept a specific existing bill is binding. An acceptance, if in writing, is usually made by writing the word "accepted" on the face of the bill followed by the signature of the acceptor,32 but any words showing an intention to accept and not putting a direct negative upon the order contained in the bill will suffice; and if the drawee simply writes his name across the face of a bill or order, it is a binding acceptance. A valid acceptance may be made by a separate instrument, but the terms of such separate instrument must be clear and free from doubt.35 Acceptance by telegram has also been held sufficient.36 34 § 3414. When acceptance implied.-An acceptance, in the absence of any statute to the contrary, may be implied from any act or conduct of the drawee clearly indicating an intention to comply with the request of the drawer, from which conduct the holder may draw the conclusion that the drawee intended to accept the bill, and intended it to be so understood.37 "Whilden v. Merchants' &c. Bank, 64 Ala. 1; 38 Am. Rep. 1; Joyce v. Wing Yet Lung, 87 Cal. 424, 25 Pac. 545; Louisville, E. & St. L. R. Co. v. Caldwell, 98 Ind. 245; Leach v. Hill, 106 Iowa 171, 76 N. W. 667; Ecker V. Snowden, 2 Miles (Pa.) 275; In re Goddard, 66 Vt. 415, 29 Atl. 634. As to parol acceptances, see note 26 L. R. A. 620. In Morse v. Massachusetts Nat. Bank, Holmes (U. S.) 209, Fed. Cas. No. 9857, it was held that a parol promise of a bank to pay a check drawn on it, the drawer having no funds on deposit, does not bind the bank, but is within the statute of frauds. 32 Cortelyou v. Maben, 22 Nebr. 697, 36 N. W. 159, 3 Am. St. 284; Spear v. Pratt, 2 Hill (N. Y.) 582, 38 Am. Dec. 600. 33 Whilden v. Merchants' &c. Nat. Bank, 64 Ala. 1, 38 Am. Rep. 1; Block v. Wilkerson, 42 Ark. 253; First Nat. Bank v. Commercial Sav. Bank, 74 Kans. 606, 87 Pac. 746, 8 L. R. A. (N. S.) 1148n, 118 Am. St. 340n; Cortelyou v. Maben, 22 Nebr. 697, 36 N. W. 159, 3 Am. St. 284. 88 Ga. 29, 13 S. E. 831; Kimbark v. Illinois Car &c. Co., 103 Ill. App. 632; Schwartz v. Barringer, 20 La. Ann. 419; Peterson v. Hubbard, 28 Mich. 197; Mechanics' Bank v. Yager, 62 Miss. 529; Bacon v. Bates, 53 Vt. 30. 35 Barnet v. Smith, 30 N. H. 256, 64 Am. Dec. 290; Germania Nat. Bank v. Taaks, 31 Hun (N. Y.) 260, revd. 101 N. Y. 442, 5 N. E. 76; Allen v. Leavens, 26 Ore. 164, 37 Pac. 488, 26 L. R. A. 620, 46 Am. St. 613. But see Eakin v. Citizens' State Bank, 67 Kans. 338, 72 Pac. 874. 36 Wells v. Western Union Tel. Co., 144 Iowa 605, 123 N. W. 371, 138 Am. St. 317, 24 L. R. A. (N. S.) 1045n; Flora &c. Bank v. Clark, 61 Md. 400, 48 Am. Rep. 114. "Hall v. First Nat. Bank, 133 Ill. 234, 24 N. E. 546; Dickinson v. Marsh, 57 Mo. App. 566; Overman v. Hoboken City Bank, 31 N. J. L. 563; State Bank v. Weiss, 46 Misc. (N. Y.) 93, 91 N. Y. S. 276; Pickle v. Muse. 88 Tenn. 380, 12 S. W. 919, 7 L. R. A. 93, 17 Am. St. 900; Westburg v. Chicago, L. & C. Co., 117 Wis. 589, 94 N. W. 572. 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 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.38 In some jurisdictions the mere retention of the bill alone does not amount to an acceptance.39 An agreement to accept a bill not yet in existence is in effect the acceptance of such bill, if the bill is drawn in strict accordance with the provisions of such agreement and within a reasonable time.40 A letter written within a reasonable time before or after the date of a bill, describing it in terms not to be mistaken, and promising to accept it, is, if shown to the person who afterward takes the bill on the credit of the letter, a virtual acceptance binding the person who makes the promise." Acceptance 43 may also be implied from authority given by the drawee,*2 but such authority must be specific and certain in its description of the bill. Likewise an acceptance may be implied from the receipt by the drawee of the goods or the proceeds of the goods against which the bill is drawn.^ § 3415. Acceptance of incomplete bill.-"A bill may be accepted before it has been signed by the drawer, or while otherwise incomplete, or where 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 Neg. Inst. Law, § 225; Matteson v. Moulton, 79 N. Y. 627; Wisner v. First Nat. Bank, 220 Pa, 21, 68 Atl. 955, 17 L. R. A. (N. S.) 1266n. 39 Mason v. Barth, 2 B. & Ald. 26; Colorado Nat. Bank v. Boettcher, 5 Colo. 185, 40 Am. Rep. 142; Overman. v. Hoboken City Bank, 31 N. J. L. 563. "Fowler v. McPhee, 13 Colo. App. 185, 56 Pac. 1118; Saulsbury, Respess & Co. v. Blandy, 53 Ga. 665; Hodges v. Iowa Barb Steel Wire Co., 80 Iowa 65, 45 N. W. 541; American Water-Works Co. v. Venner, 63 Hun (N. Y.) 632, 45 N. Y. St. 441, 18 N. Y. S. 379: Lockwood v. Brownson, 53 Tex. 523. "Carrollton Bank v. Tayleur, 16 La. 490, 35 Am. Dec. 219; Wilson v. Clements, 3 Mass. 1; Nimocks v. Woody, 97 N. Car. 1, 2 S. E. 249, 2 Am. St. 268; Coolidge v. Payson, 15 U. S. 66, 4 L. ed. 185. 42 McPhee v. Fowler, 36 Colo. 202, 85 Pac. 421; Adoue v. Fox, 30 Mo. App. 98; Ruiz v. Renauld, 100 N. Y. 256, 3 N. E. 182; Riggs v. Lindsay, 7 Cranch (U. S.) 500, 3 L. ed. 419. 43 Johnson v. Blakemore, 28 La. Ann. 140; Boyce v. Edwards, 4 Pet. (U. S.) 111, 7 L. ed. 799. 44 Nutting v. Sloan, 57 Ga. 392; Hall v. First Nat. Bank, 133 Ill. 234, 24 N. E. 546. 9945 of the date of the first presentment.' The liability of an acceptor of a bill of exchange being primary and of the same nature as the maker of a note, the same reasons and rules apply to his accepting an incomplete bill as apply to the signing by the maker of an incomplete note. § 3416. Qualified or conditional acceptance.—“An acceptance is either general or qualified. A general acceptance assents without qualification to the order of the drawer. A qualified acceptance in express terms varies the effect of the bill as drawn." Whenever possible an acceptance will be construed as general, and it is only in case where the qualification or condition is clear and distinct that it will be held a qualified acceptance." 47 "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 elsewhere."48 The holder of a bill may refuse to receive a qualified acceptance and treat the bill as dishonored by nonacceptance. The following provision of the Negotiable Instruments Law is a clear statement of the law generally: "An Acceptance is qualified which is: (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, acceptance to pay part only of the amount for which the bill is drawn; (3) local, that is to say, an acceptance to pay only at a particular place; (4) qualified as to time; (5) the acceptance of some one or more of drawees, but not of all.' 49 9950 § 3417. Acceptance for honor.-Acceptance for honor is sometimes called acceptance supra protest. The object of such an acceptance is to protect the credit of a party liable on the bill. 45 Neg. Inst. Law, § 226; Stockwell v. Bramble, 3 Ind. 428; Exchange Bank v. Rice, 98 Mass. 288; Williams v. Winans, 14 N. J. L. 339; Leavitt v. Putnam, 3 N. Y. 494, 53 Am. Dec. 322; Spaulding v. Andrews, 48 Pa. St. 411; Bank of Pittsburgh v. Neal, 22 How. (63 U. S.) 107. 16 L. ed. 328. Neg. Inst. Law, § 227. 46 47 Mever v. De Croix (1891), App. Cas. 520; Corbett v. Clark, 45 Wis. 403, 30 Am. Rep. 763. |