Bell v. First Nat Bank of Chicago

This suit was brought in the circuit court of the United States for the Northern district of Illinois, by the First National Bank of Chicago, as indorrse, against the plaintiffs in error, copartners under the name of Humphrey Bell & Co., as the drawers of three bills of exchange One was in this form:

'Exchange for £850.0.0.

CANTON, ILL., March 4, 1878.

'Sixty days after sight of this first of exchange (second and     third unpaid) pay to the order of ourselves, in London, eight      hundred and fifty pounds sterling, value received, and charge      to account of

'HUMPHREY BELL & CO.

'To Mr. W. D. Turner, Jr., Liverpool.'

Across the face of the bill, as sued on, these words were written:

'Accepted. Payable at Messrs. Barclay & Co., bankers, London. Due twenty-first May.

W. D. TURNER, Jr.'

The foregoing description applies to each of the other two bills, and the writing across its face, except that each was for £800, and one was dated March 11, 1878, and had in the writing across its face 'Due thirty-first May,' instead of 'Due twenty-first May.' The declaration was in assumpsit. Each of the defendants separately pleaded non-assumpsit, and there were various special pleas, on which issue was joined. At the trial the court directed the jury to find a verdict for the plaintiff for $10,937.13 damages, which was done, and for that amount, with costs, a judgment was rendered for the plaintiff, to review which the defendants have brought this writ of error.

After making certain necessary proof, the plaintiff offered in evidence the three bills, and a notary public's certificate of protest accompanying each. The bill of exceptions says: 'The paper introduced and read in evidence as the certificate of protest of said £850 draft states that on the twenty-first day of May, 1878, at the request of the City Bank of London, the notary public exhibited the original bill of exchange, before copied, to a clerk in the banking-house of Messrs. Barclay & Company, bankers, London, where the said bill is accepted payable, and demanded payment of its contents, which demand was not complied with, but the said clerk thereunto answered, 'No orders,' whereupon the said notary protested the said draft against the drawers, acceptor, and indorsers. The other two papers introduced as certificates of protest of the other two of said drafts are in the same form, and state the protest to be in each case the same day they are stated to be due in the acceptance thereof.' When the drafts and certificates of protest were offered in evidence, the defendants objected to the admission of each of them, but the objection was overruled, and they were read in evidence, to which the defendants excepted.

The bill of exceptions purports to set forth all the evidence offered by either of the parties on the trial, but there is no evidence showing any presentation for payment of any one of the bills on any other day than that stated in the acceptance as the day it was due, not is there any evidence showing when the acceptances were written by Turner, although his deposition taken at Liverpool, 16 months before the trial, was read in evidence by the plaintiff. All that is said on the subject in that deposition is: 'The last three bills for £800, £850, and £800, drawn by defendants on me and accepted by me, and which matured on the twenty-first May and thirty-first May, 1878, were dishonored.'

At the close of the evidence on both sides, and before the charge, the defendants requested the court to instruct the jury as follows, among other things: 'That the bills of exchange sued on in this case are what are known to the law as foreign bills; that upon such bills three days, called days of grace, are allowed by law after the day on which they become due or mature; that such a bill does not become due, in fact or in law, on the day mentioned on its face, but on the last day of grace; that unless such bills are duly protested on the last day of grace (or on the second day, if the last day be Sunday) such protest is not duly made, and the drawers and indorsers are thereby discharged from liability upon such bills; that if the jury believe from the evidence and under the instructions of the court that the bills of exchange sued on in this case were not protested upon the last day of grace, (or upon the preceding day, if the last day fell on a Sunday,) then the verdict of the jury must be for the defendants.' The court refused to instruct as requested as to either of the above points, and the defendants excepted to such refusal. The court then charged the jury that the plaintiff was entitled to a verdict, and directed them to render a verdict for the plaintiff for $10,937.13 damages, which was done. To such a rulling and direction the defendants excepted. In the charge set forth in the bill of exceptions the views of the court on the questions embraced in the instructions so requested and refused were given in these words: 'Several defenses are urged against the plaintiff's right to recover: First. That the bills were prematurely presented for payment, and protested; that is, as I have said, the bills are payable sixty days after sight, they were accepted by Turner, and, by the terms of the acceptances, were made payable, the two first on the twenty-first, and the last on the thirty-first, of May, 1878, and were protested for non-payment on the days on which they were respectively made payable. The defendants contend that as the law allows three days of grace on all bills of this character, they should not have been presented for payment, or payment demanded, until three days after the date named in the acceptance, and that, therefore, the protests are void and inoperative. * * * As to the first point made, that the bills were prematurely protested, which is equivalent to saying they were never protested at all, this defense raises a question of law upon undisputed facts. The bills each appear on their face to have been accepted by Turner, on whom they were drawn, payable, the two first on the twenty-first, and the last on the thirty-first, of May, 1878, and were protested for non-payment on that day. There is no proof in the record nor on the bills, nor has any been offered, tending to show when Turner first saw these drafts; that is, when they were presented to him for acceptance. The law applicable to these bills, giving sixty-three days from the time they were so sighted until they were due,-that is, sixty days and three days grace,-is unquestioned, and admitted to be the law governing the rights of the parties to this paper. This acceptor saw fit to make his acceptance payable on a day certain, and I am of opinion that the court must hold that, by the terms of this acceptance, he intended to, and did, make the bills payable, without further days of grace, on the days named in his acceptance; and therefore the bills were properly protested for non-payment on the twenty-first and thirty-first days of May.'

O. H. Horton, for plaintiffs in error.

H. A. Gardner, for defendant in error.

[Argument of Counsel from pages 377-379 intentionally omitted]

BLATCHFORD, J.