Page:Federal Reporter, 1st Series, Volume 5.djvu/255

 PBNDLETON V. KNICKBEBOOKEB LIFB INS. CO. 248 breach of duty on the part of the company, and precludes it from claiming a forfeitare of the policy, unless excused, as to which I shall instruct you further on. If pretest and leG;al notice had been given for non-acceptance, the company neet. not have presented for non-payment ; but, not having protested the note for non-acceptance, it was its duty to present at maturity and demand payment. There is some dispute as to whether the note was preaented for payment on the day of its maturity, namely, October 14, 1871, or later, but there is no claim that it was protested for non-payment and legal notice given. The only notice was a letter from the agents dated November 20, 1871. This was not legal notice, and the drawer was clearly dischargod unless the neglect was excused. By this neglect, as well as the n^lect to prpteat and give legal notice for non-acceptance, the company pre- oluded itself from relying on a breach of the condition in the policy. Indeed, the legftl resuit is that the draft became pay- ment in fact, and there was no breach of the condition unless on the facts of the case the neglect has been excused. The only legal excuse would be want of funds in the hands of the drawees at the time of presentation; and this would not excuse if the drawer of the draft had reasonable ground to expect that bis draft would be accepted and paid by the drawees. You wiU therefore look to the proof and say whether the drawer had funds in the hands of the drawees to meet this draft, and, if you find he did not, then you will determine whether there was reasonable expectation of accept- ance of payment. In determining this question you will look to the facts in proof on both sidçs, and determine whether there was any contract between Pendleton and Greenwood & Co. thart his drafts should be accepted and paid, and if you find there was such a contract he was entitled to demand and notice. If there was no contract, but an arrangement,. and you find that Pendleton was a planter, and Greenwood & Go. his factors; that by the <jourse of.dealing between them they accepted and paid his drafts, advaneed him mpney, and dealt with him so as to justify him in expectiug-they would accept and pay without reference tp the state of the account; and if