Denio, Ch. J.
Assuming the paper upon which the action is brought to be operative as an independent bill, it was presented with legal diligence, and the defendant was duly charged. The omission to forward it on the very day it was received, if that had been essential, was excused by the necessity of procuring the indorsement of the plaintiff, which the defendant knew, when he drew the draft, was requisite to be done. The defendant moreover knew, when he drew it,
that it was drawn for the purpose of being remitted to Hartford, and he caünot complain of the delay which that would occasion. Besides, the plaintiff proved by one witness that a delay of one day in forwarding it was requested by the defendant, and though that was contradicted, it presented a question for the jury, if the fact was material. But I do not understand that the plaintiff was obliged to forward it on the very day he received it. If it had been sent the next day, laches would not be imputable to the plaintiff. (Chitty on Bills, 420, Spring, ed., 1839.) The Supreme Court found no difficulty in this part of the case. The opinion declares that the presentment was in season, and, impliedly, that the plaintiff would have been entitled to recover, but for the connection of the bill with the former one drawn in the preceding month.
The nonsuit was sustained on the position that the defendant was entitled to the same defense as though the action had been brought on the first draft. Then, inasmuch as there had been a delay of more than thirty days in presenting that draft, which was not excused, during which time the drawees had failed, the plaintiff, upon familiar principles, had lost his right to resort to the drawer. I do not concur in that view of the case. The draft sued on was given on the assumption by both the parties that' the former one had, before presentment, been lost, so that the plaintiff was unable to avail himself of it to make the remittance for which he obtained it. The plaintiff asserted it by asking for a second bill, and the defendant acquiesced in the truth of the assertion by giving it, as he on two former occasions offered to do, and there was no evidence to raise a doubt upon the fact of such loss, or the slightest proof or presumption that it had been presented and paid. The whole case proceeds upon the concession that it had not been paid. The facts existing and presented to the minds of the parties when the second bill was drawn were these: The defendant had in his hands the plaintiff’s money, which he had paid for the draft obtained in July, and the drawees in Hew York had in their hands the defendant’s money to the requisite amount and more, subject to his orders.
Surely the plaintiff was not obliged to lose the money he had thus paid, and the defendant to acquire it on account of the loss of the prior draft. The giving of the July draft was an equitable assignment of so much of the defendant’s money to the plaintiff. It did not, it is true, create a privity of contract between the plaintiff and the drawees, but the draft was a transfer enforceable in equity, in the absence of other remedies for its recovery, and it was a sufficient consideration for the duplicate draft.
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Denio, Ch. J.
Assuming the paper upon which the action is brought to be operative as an independent bill, it was presented with legal diligence, and the defendant was duly charged. The omission to forward it on the very day it was received, if that had been essential, was excused by the necessity of procuring the indorsement of the plaintiff, which the defendant knew, when he drew the draft, was requisite to be done. The defendant moreover knew, when he drew it,
that it was drawn for the purpose of being remitted to Hartford, and he caünot complain of the delay which that would occasion. Besides, the plaintiff proved by one witness that a delay of one day in forwarding it was requested by the defendant, and though that was contradicted, it presented a question for the jury, if the fact was material. But I do not understand that the plaintiff was obliged to forward it on the very day he received it. If it had been sent the next day, laches would not be imputable to the plaintiff. (Chitty on Bills, 420, Spring, ed., 1839.) The Supreme Court found no difficulty in this part of the case. The opinion declares that the presentment was in season, and, impliedly, that the plaintiff would have been entitled to recover, but for the connection of the bill with the former one drawn in the preceding month.
The nonsuit was sustained on the position that the defendant was entitled to the same defense as though the action had been brought on the first draft. Then, inasmuch as there had been a delay of more than thirty days in presenting that draft, which was not excused, during which time the drawees had failed, the plaintiff, upon familiar principles, had lost his right to resort to the drawer. I do not concur in that view of the case. The draft sued on was given on the assumption by both the parties that' the former one had, before presentment, been lost, so that the plaintiff was unable to avail himself of it to make the remittance for which he obtained it. The plaintiff asserted it by asking for a second bill, and the defendant acquiesced in the truth of the assertion by giving it, as he on two former occasions offered to do, and there was no evidence to raise a doubt upon the fact of such loss, or the slightest proof or presumption that it had been presented and paid. The whole case proceeds upon the concession that it had not been paid. The facts existing and presented to the minds of the parties when the second bill was drawn were these: The defendant had in his hands the plaintiff’s money, which he had paid for the draft obtained in July, and the drawees in Hew York had in their hands the defendant’s money to the requisite amount and more, subject to his orders.
Surely the plaintiff was not obliged to lose the money he had thus paid, and the defendant to acquire it on account of the loss of the prior draft. The giving of the July draft was an equitable assignment of so much of the defendant’s money to the plaintiff. It did not, it is true, create a privity of contract between the plaintiff and the drawees, but the draft was a transfer enforceable in equity, in the absence of other remedies for its recovery, and it was a sufficient consideration for the duplicate draft.
The drawees continued, so far as the evidence shows, in good credit, and no reason appears to have existed why the plaintiff was not as willing to trust them during the time it would take to collect another sight draft as he had been in July, when the first draft was given. They had in their hands belonging to the defendant much more than the amount of the draft, which remained with them at the time of their failure. Under these circumstances the defendant gave the plaintiff the draft in suit of precisely the same tenor as the former one, and containing no qualification or limitation in its terms of the rights and obligations of the parties, unless one is to be implied from the similarity of the two bills, and the word duplicate which was written across the face of the last one. The Supreme Court implies from that word, and the identity of the terms of the bills, a very special agreement. They would make the bill effectual as an order for the money, if the drawees would pay it, but a denial of the defendant’s liability as drawees if they should not pay it. It would have been competent, no doubt, for the parties to make such an agreement; but there were no known circumstances suggesting its necessity, and there was certainly no direct evidence that such an agreement was made, and I think none from which it could be implied. The word duplicate had, under the circumstances, very much the same effect as the words of reference inserted, where bills of exchange are drawn in sets. The different parts are precisely alike, and the drawee is requested, in each, to pay the amount mentioned, if the others, which are referred to by their numbers, are unpaid. This is necessary to prevent each
part being negotiated and presented and paid as an independent bill. But either one of the separate parts may be used, as a perfect and available bill against the drawers as well as the drawees. In my opinion it is to be intended, as the fact undoubtedly was, that the word duplicate was inserted for the purpose of preventing the payment of 0both bills. It might happen that the first one would be presented and paid before the second one could be presented. It was supposed to be lost; but it was-not proved to have been destroyed; and it was a reasonable and necessary precaution to take, to apprise the drawees, on the face of the second bill, that it was the duplicate of another one, so that they should not pay it if that other one had been presented and paid. The case is not precisely similar I admit, to that of sets of bills, all drawn at the same time, for the first bill in this case contained no reference to any others. It might happen that the first bill had been negotiated and had come into the hands of a
bona fide
holder, and been withheld from presentment under circumstances which would excuse the delay. In that case if it should be presented and protested after the one marked duplicate had .been paid, the defendant might be made liable as drawer, after his funds had been used to pay the duplicate. The probability of this was very remote. The possibility of its occurrence might have justified the defendant in requiring an indemnity before drawing another bill; but instead of requiring such an indemnity he consented to draw the present bill, embracing in its terms the usual obligations of a drawer, and taking only the precautions, by inserting the word duplicate, to provide that both bills should not be paid by the drawees and be charged to his account. By doing this he impliedly waived other precautions, such as might be suggested by the apprehension of the subsequent presentment and protest of the first bill by a
bona fide
holder under circumstances which would charge him as a drawer. The theory by which the Supreme Court sustained the nonsuit is abstruse and unnatural. It supposes an arrangement which the circumstances of the case, existing at the time the bill in suit was drawn, did not suggest, and
which did not become pertinent or applicable until after the happening of the event, which was unexpected by both parties, the failure of the drawees. What is more important, it supposes a contract which is hostile to the legal effect of the instrument which the defendant signed, and which, as I have just said,, there is no evidence to support. It gives an effect to the word which was inserted to show that another bill of the same purport had been drawn, and, apparently, to prevent the drawees from paying both, which would make the bill an assignment of the fund, with a provision that it should be without recourse to the defendant, though neither of the bills should be paid. Hence, I am in favor of reversing the judgment and ordering a new trial.
I do not perceive that the facts which I have considered sufficient to sustain the action were at all in dispute; and it seems to me, therefore, that if they should appear to be equally certain upon another trial the judge ought to direct a verdict for the plaintiff.
Judgment reversed.