35

it in behalf of his principal. An acceptance in blank, where the bill is incomplete, and is afterwards to be filled in, is valid.36

DELIVERY

47. An acceptance is probably complete only upon delivery,37

It is maintained by Professor Ames that an acceptance is complete without delivery because, as he says, the delivery of a bill or note is necessary only for the purpose of creating or transferring title; 38 and an acceptance has no effect upon the title to the bill, and is, therefore, complete the moment it is written upon the bill, animo contrahendi. In support of this position he cites Wilde v. Sheridan.30 In this case the question was whether the judge of the Norfolk county court, whose jurisdiction was local and dependent upon the accrual of the cause of action within the county, had jurisdiction over a case where the defendant signed an acceptance in London, England, and sent it by mail to Norwich, Norfolk county. The court held that the contract was made in London, and not in Norwich, and therefore that the whole cause of action did not accrue within

35 Walker v. Bank, 9 N. Y. 582.

36 N. I. L. § 138. Leslie v. Hastings, 1 Moody & R. 119. Defendant gave A a stamp with his acceptance in blank, authorizing A to draw for a certain sum at a specified date, and A drew the bill on the stamp accordingly. Held, in an action by the indorsee against the acceptor, that the acceptance was valid. Hopps v. Savage, 69 Md. 513, 16 Atl. 133, 1 L. R. A. 648.

37 But in jurisdictions where the N. I. L. is in force, acceptance is complete without delivery if it be communicated. N. I. L. § 191. 38 2 Ames, Bills & N. p. 791.

39 21 Law J. Q. B. 260. See, also, Roff v. Miller, 19 Law J. C. P. 278; Thornton v. Dick, 4 Esp. 270. In Bentinck v. Dorrien, 6 East, 199, a bill on the defendants was left by the plaintiff, who was indorsee. The defendants accepted, but on the next day canceled their acceptance, whereupon plaintiff protested for nonacceptance. It was held that, while such acceptance might be valid as to a third party, the plaintiff had, by protesting, precluded himself from claiming an acceptance.

the county, and hence that the court had not jurisdiction. Lord Coleridge, referring to the argument that an acceptance was like an indorsement, distinguished the acceptance from an indorsement, and said: "One purpose of an indorsement is to pass the property in the bill, and that purpose is not effected until actual or constructive delivery. But the acceptor has no property in the bill before or after acceptance. He must be supposed to receive the drawer's paper and on it write his promise without in any way altering the property in the bill. He may, indeed, before any communication to the drawer of the act done, revoke it, but his promise, unless so revoked, is complete, and takes effect from the time when it is made." The reasoning of this case cannot be reconciled with the earlier case of Cox v. Troy, where the indorsees of a bill left it with the drawee for acceptance, and he after writing an acceptance thereon redelivered it with the acceptance crossed out, and it was held that he was not liable as acceptor, on the ground that an acceptor was at liberty to revoke an acceptance before redelivery of the bill. The reason advanced in support of this view was the practical one that no person could be prejudiced by permitting the drawee to withdraw his acceptance before redelivery, and the law is generally laid down in accordance with Cox v. Troy."1

40

40 5 Barn. & Ald. 474.

41

41 Dunavan v. Flynn, 118 Mass. 537; Freund v. Importers' & Traders' Nat. Bank, 3 Hun (N. Y.) 689; Rand. Com. Paper, § 637; Daniel, Neg. Inst. § 490; First Nat. Bank v. First Nat. Bank, 127 Tenn. 205, 154 S. W. 965 (N. I. L.). Under N. I. L. § 191, however, acceptance is complete without delivery, provided it be communicated. An acceptor may after delivery rescind his acceptance for fraud, if the paper has not passed into the hands of a holder in due course. Johnson County Sav. Bank v. Gregg, 51 Colo. 358, 117 Pac. 1003 (N. I. L.).

NORT.B.& N.(4TH ED.)-9

FORMS AND VARIETIES OF ACCEPTANCE

48. An acceptance, if in writing, is constituted by any words from which an intention to accept can be gathered.

49. An acceptance, if verbal, is constituted by any words which evidence such intention clearly and unequivocally, if they be addressed to the drawer or holder, and he waive his right to a written acceptance. An acceptance may also be implied from conduct evidencing such intention.

As has been said, the acceptance is the assent of the drawee to the request of the drawer. The question, then, is, what, under the law merchant, will be deemed an evidence of such assent.2 There are three general classes based upon the divisions we have given above: Acceptances in writing, acceptances by parol, and acceptances implied from conduct.

If in writing, the courts, according to Judge Cowen,43 go to the length of saying that any form of words which do not in themselves negative the request of the bill shall be

42 Where a check drawn on one bank by another, payable to a third person, was paid by the drawee bank upon a forged indorsement, the court held that the payment did not constitute an acceptance, citing First Nat. Bank v. Whitman, 94 U. S. 343, 24 L. Ed. 229, and quoting from that case as follows: The argument that such payment constituted an acceptance "proceeds on the erroneous assumption that the bank has paid this check. If this were true, it would have discharged all its duty, and there would be no claim upon it. The bank supposed that it had paid the check, but this was an error. In law the check remains unpaid." Sims v. American Nat. Bank of Ft. Smith, 98 Ark. 1, 135 S. W. 356.

43 Spear v. Pratt, 2 Hill (N. Y.) 582, 38 Am. Dec. 600. Referring to the laxity of the courts in construing acceptances, Willes, J., said, in Sproat v. Matthews, 1 Term R. 185: "The court has not of late been very nice with regard to what shall be construed to be an acceptance; for though formerly it was held necessary that an acceptance should be in writing, yet of late years a parol acceptance has been deemed sufficient; and, indeed, at present almost anything amounts to an acceptance."

44

treated as a valid acceptance of it." Under the common law, neither the word "Accepted" nor the signature of the acceptor is necessary. The unsigned words "Seen," 45 "Presented," "Honored," 47 or merely the name of the drawee, or "I will pay this bill," are sufficient acceptances. In many jurisdictions written and signed acceptances are required, meaning, according to the interpreta

48

50

49

44 Where a bill was drawn on the defendant, and he wrote across it: "Accepted. Payable at Messrs. Stevens & Co.,"-but failed to sign, it was held to amount to an acceptance. The court, in summing up, said that it was of opinion that the writing might be valid in law, though unsigned, but that whether it was intended so to operate in its unfinished condition was a question for the jury. Dufaur v. Oxenden, 1 Moody & R. 90. In an action of assumpsit by the indorsee against the acceptor, it was proved that the defendant had given a stamp, with his acceptance in blank to the drawer, and authorized him to draw at a certain date for a specific amount. It was held that there was an actual acceptance in writing, with express authority to fill in the bill in a particular manner. Leslie v. Hastings, 1 Moody & R. 119. In an action by the indorsee against the acceptor it appeared that the drawee signed his name after the address. Across the bill was stamped the word "Accepted," and after a blank line for signature the words "Sign here" appeared. It was held that there was an actual acceptance in writing, although there was no signature over the blank line for that purpose. First Nat. Bank of Iowa City v. Trognitz, 14 Cal. App. 176, 111 Pac. 402.

45 Barnet v. Smith, 10 Fost. (30 N. H.) 256, 64 Am. Dec. 290. 46 Pars. Bills & N. 282.

47 Anson, Cont. 401.

48 Spear v. Pratt, 2 Hill (N. Y.) 582, 38 Am. Dec. 600.

49 Ward v. Allen, 2 Metc. (Mass.) 53, 35 Am. Dec. 387.

50 The statutes differ in their provisions, some requiring the acceptance to be in writing, and others that it be in writing, and signed by the acceptor. The American statutes are collected in Rand. Com. Paper, § 605. The student should consult the statutes of his own state. The Negotiable Instruments Law goes far to reform and render uniform the unsatisfactory condition of the American law. It provides that "the acceptance must be in writing, and signed by the drawee" (§ 132); that the holder "may require that the acceptance be written on the bill" (§ 133); and that, "where an acceptance is written on a paper other than the bill itself, it does not bind the acceptor, except in favor of a person to whom it is shown, and who, on the faith thereof, receives the bill for value" (§ 134). The Negotiable Instruments Law is less radical than the English Bills of Exchange Act (45 & 46 Vict. c. 61), which (§ 17) provides that the ac

tion of numerous cases, that an acceptance is sufficient if it be the name of the acceptor alone, which complies with the regulation that the acceptance shall be in writing and be signed. Under the Negotiable Instruments Law every

51

ceptance must be written on the bill, and be signed by the drawee. This was a re-enactment of 19 & 20 Vict. c. 97, § 6 (1856) and of 1 & 2 Geo. IV, c. 78, § 2 (1821), which, however, applied only to inland bills. The English act thus gives complete recognition to the principle that the obligation of the acceptor, like that of all other parties to negotiable paper, should appear on the bill itself. 2 Ames Cas. Bills & N. 787. In Washington, a complaint under the N. I. L. failing to allege a written acceptance is demurrable as failing to state a cause of action. Nelson v. Nelson Bennett Co., 31 Wash. 116, 71 Pac. 749 (N. I. L.); Wadhams v. Portland, V. & Y. Ry. Co., 37 Wash. 86, 79 Pac. 597 (N. I. L.), following the Nelson Case. The question was not raised in Seattle Shoe Co. v. Packard, 43 Wash. 527, 86 Pac. 845, 117 Am. St. Rep. 1064 (N. I. L.). In Alabama, a contrary conclusion has been reached. Faircloth-Byrd Mercantile Co. v. Adkinson, 167 Ala. 344, 52 South. 419 (N. I. L.). In Baltimore & O. Ry. Co. v. First Nat. Bank, 102 Va. 753, 47 S. E. 837 (N. I. L.), there was no allegation of a written acceptance, but the question was not raised, the alleged order being insufficient. In Dugane v. Hvezda Pokroku No. 4 (Iowa) 119 N. W. 141 (N. I. L.), Van Buskirk v. State Bank of Rocky Ford, 35 Colo. 142, 83 Pac. 778, 117 Am. St. Rep. 182 (N. I. L.), and Izzo v. Ludington, 79 N. Y. Supp. 744, 79 App. Div. 272, affirmed 178 N. Y. 621, 70 N. E. 1100 (N. I. L.), it does not appear whether there was a written acceptance alleged in the complaint or not, but in each, the plaintiff failed through his inability to prove one, the necessity of such an allegation not being discussed. The Nelson Bennett and Wadhams Cases, supra, settle the rule for Washington, but Alabama is the only other state which has decided the point directly, reaching the opposite conclusion in the Faircloth Case. The Baltimore & O. Ry. Co., Dugane, Van Buskirk, and Izzo Cases, while they decide nothing on the point, seem to indicate that a complaint alleging a due acceptance, but not alleging it to be in writing, is not fatally defective. See, also, Barnsdall v. Waltemeyer, 142 Fed. 415, 73 C. C. A. 515, where the court held that, when the answer does not show affirmatively that the acceptance was by parol, a presumption arises that it was in writing.

51 The drawee of a bill of exchange wrote his name across the face of the bill, without words of acceptance. This was held to be such an acceptance as to bind him, even though the statutory requirements were that the acceptance should be in writing, and signed. Spear v. Pratt, 2 Hill (N. Y.) 582, 38 Am. Dec. 600. In Hughes Bros. v. Rawhide Gold Min. Co., 16 Cal. App. 293, 116 Pac. 969, the statutory requirement was that the acceptance must be in writ