amount to a promise to accept, see Bank of Morganton v. Hay, 143 N. C. 326.

Representation of agent. The party dealing with the agent may rely upon his representation, express or implied, that the draft is in the business of the principal, or that the funds are needed, and he is protected, although it turns out that the representation is false. N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 30; Merchants' Bank v. Griswold, 72 N. Y. 472.

Variance. Where one has agreed to accept a draft for a certain sum, he cannot refuse payment because the draft, when presented, includes the words "with exchange," no place of exchange being named and the draft being payable at the residence of the drawee, and the evidence failing to show that exchange was sought to be charged or collected. First National Bank v. Muskogee Pipe Line Co., 40 Okla. 603.

Promise by telegraph.-A promise to accept given by telegraph satisfies the requirement that the promise shall be in writing. Johnson v. Clark, 39 N. Y. 216; North Atchison Bank v. Garretson, 51 Fed. Rep. 167; Franklin Bank v. Lynch, 52 Md. 270. As to countermanding by telegraph an offer to accept, see First Nat. Bank v. Clark, 61 Md. 400.

Reliance upon promise. The holder must acquire the bill on the faith of the promise to accept. Howland v. Carson, 15 Pa. St. 453.

Where promise is conditional.-An agreement to accept is still but an agreement, and if it is conditional, and a third person takes the bill knowing of the conditions, he takes subject to such conditions. Muller v. Kling, 149 App. Div. (N. Y.) 176, 181; Corrugating Co. v. Taylor, 95 Kans. 562. In the case first cited the court said: "To be sure, the Negotiable Instruments Law only covers the case of an unconditional promise to accept, doubtless because, in general, conditions attached to commercial paper deprive it of the attribute of negotiability, though an acceptance of a bill may be conditional."

By what law governed.-A promise to accept is governed by the law of the state where it is made, notwithstanding it is to be performed elsewhere. Scott v. Pilkington, 15 Abb. Pr. 280.

§ 136. Time allowed drawee to accept.-The drawee is allowed twenty-four hours after presentment in which to decide whether or not he will accept the bill; but the acceptance, if given, dates as of the day of presentation.

Reason for the rule.-When the bill is presented, it is reasonable that the drawee should be allowed some time to deliberate whether he will accept or not; and by the rule of the law merchant he was entitled to demand twenty-four hours for this purpose, and the holder was justified in leaving the bill with him for that period. Byles on Bills, 182. See also Case v. Burt, 15 Mich. 82. See next section. By the former statute of Massachusetts, the drawee had until two o'clock on the day following. (Public Statutes, 1882, ch. 77, section 17.)

Check presented for acceptance.-Where a check is presented for acceptance the bank may, if it sees fit, demand twenty-four hours in which to decide whether to accept or not. First Nat. Bank of Murfreesboro v. First Nat. Bank of Nashville, 154 S. W. Rep. (Tenn.) 965. In the case cited the court appears to confuse the case of a check presented for payment with the case of a presentment for acceptance.

Date of acceptance. The provision that the acceptance is to date as of the day of presentation conforms to what was the common practice; but there were no judicial decisions upon the point.

§ 137. Liability of drawee retaining or destroying bill. Where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses within twentyfour hours after such delivery, or within such other period as the holder may allow, to return the bill accepted or non-accepted to the holder, he will be deemed to have accepted the same.

Variant readings.—In Illinois and South Dakota this section is omitted. In Wisconsin the following is added at the end of the section: "Mere retention of the bill is not acceptance." In Pennsylvania the section has been amended by the addition of a

proviso as follows: "Provided, that the mere retention of such bill by the drawee, unless its return has been demanded, will not amount to an acceptance; and provided further that the provisions of this section shall not apply to checks." Laws 1909, No. 169. See note below.

Mere omission to return bill.-This section was taken without change from a New York statute which had been in force for many years. 1 Rev. Stat., N. Y., 769, section 11. This statute had been construed by the Court of Appeals, which held that the refusal spoken of meant an affirmative act, and that a mere omission to return, where there was no demand, was not a "refusal" within the meaning of the statute. Matteson v. Moulton, 79 N. Y. 627. See also Westberg v. Chicago Lumber & Coal Co., 117 Wis. 589. And this seems to be the plain import of the langauge used. But the Supreme Court of Pennsylvania, construing the section, held that mere neglect to return the paper may constitute such a refusal. Wisner v. First Nat. Bank, 220 Pa. St. 21. In this case certain checks were forwarded to the drawee bank for collection, and the drawer not having sufficient funds on deposit to pay them, the bank delivered them for protest to a notary public, who held them without protesting them, or giving notice of dishonor, and in this way the checks were retained for more than two days after their delivery to the bank:-Held, that such retention of the checks by the bank was an acceptance within this section. But it is difficult to see how the statute could apply to such a state of facts. It refers only to cases where the paper is presented for acceptance; and where checks are remitted to the drawee bank, the obvious purpose is to present them for payment, and not mere acceptance. What the holder desires in such a case, is that the bank shall remit the money, not that it shall return the check with its acceptance placed thereon. The decision of the Supreme Court of Pennsylvania referred to above led to the amendment of 1909; and now in that state all acceptances of checks must be in writing, and retention by the drawee cannot, in the case of a check, amount to an acceptance. Union Nat. Bank v. Franklin Nat. Bank, 249 Pa. St. 375. See note "Variant Readings" above. This section has no application where First Nat. Bank of Omaha v. Whitmore,

Non-negotiable paper. the bill is non-negotiable. 177 Fed. Rep. 397.

§ 138. Where bill incomplete or has been dishonored. -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 non-payment. But when a bill payable after sight is dishonored by non-acceptance 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 presentment.

Variant readings.-In South Dakota the word " payable is interpolated between the words "bill" and "accepted" near the end of the section. This is probably an error in engrossing.

§ 139. Kinds of acceptances.-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.

Place of payment.-Where a bill is addressed to the drawee in one place, and is accepted payable in another, this is a material variation. Walker v. Bank of State of N. Y., 13 Barb. 636; Niagara Bank v. Fairman Co., 31 Barb. 403. But a bill addressed generally to a drawee in a city may be accepted payable at a particular bank in that city. Troy City Bank v. Lanman, 19 N. Y. 477; Meyers v. Standart, 11 Ohio St. 29. And a bill so accepted is equivalent to a check. See section 87.

§ 140. Acceptance to pay at particular place.-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.

Acceptance payable at a particular place.-Before the enactment of the 1 and 2 George IV., c. 78, it was a point much dis

puted whether, if a bill payable generally was accepted payable at a particular place, such an acceptance was a qualified one. Byles on Bills, 194. The House of Lords finally held that an acceptance payable at a particular place was a qualified acceptance, rendering it necessary, in an action against the acceptor, to aver and prove presentment at such place. Rome v. Young, 2 Brod. & Bing. 165, 2 Bligh, 391. This led to the passage of the statute above mentioned, called Sergeant Onslow's act, which provided that an acceptance payable at a particular place should be deemed a general acceptance unless expressed to be payable there "only and not otherwise or elsewhere." In the United States the weight of authority has been contrary to the decision of the House of Lords, and in favor of the rule as stated in this section. Wallace v. McConnell, 13 Peters, 136. See also note to section 70.

§ 141. Qualified acceptance.—An acceptance is qualified, which is:

1. Conditional, that is to say, which makes payment by the acceptor dependent on the fulfillment 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 only at a particular place;

4. Qualified as to time;

5. The acceptance of some one or more of the drawees, but not of all.

Where payment is made to depend upon condition.-Such an acceptance does not become due until the happening of the contingency upon which the bill is accepted. Brockway v. Allen, 17 Wend. 40; Newhall v. Clark, 3 Cush. 376; Myrick v. Merritt, 22 Fla. 335; Marshall v. Burnby, 25 Fla. 619. A telegram in the following form "Will pay McMillan's draft on me two fifty for horses," is not a conditional acceptance and the bank cashing the same may hold the acceptor though the money was applied by the drawer to another purpose. State Bank of Beaver County v. Bradstreet, 89 Neb. 186.