Dunavan v. Flynn

118 Mass. 537, 1875 Mass. LEXIS 426

• Court: Massachusetts Supreme Judicial Court
• Decided: October 12, 1875
• Status: Published

Opinion

Gray, C. J.

An acceptance of a bill of exchange, or draft for the payment of money, may be oral, or may be implied from acts, such as detention for a long time, contrary to the usage of the parties and under such circumstances as to give credit to the bill. Storer v. Logan, 9 Mass. 55, 60. Pierce v. Kittredge, 115 Mass. 374. Hough v. Loring, 24 Pick. 254, 257. 3 Kent Com. (12th ed.) 85.

But in the case before us, the jury have found that there was no oral acceptance, and were warranted in so doing, for although the testimony of the defendant and of the holder of the bill, tending to prove such acceptance, is stated in the bill of exceptions not to have been contradicted, the jury were not obliged to believe it. Allowing the utmost weight to all the evidence, there was nothing to show that the detention of the bill by the defendant was contrary to the usual course of dealing between the parties, (for it did not appear that they had had any other dealings,) or that the defendant was under any obligation to return the bill to the holder, or detained it for any other reason except that she did not call for it. . Under these circumstances, it was rightly held that the mere writing of the acceptance upon the bill, not communicated to the drawer or holder, and the detention of the bill in the defendant’s custody, did not bind him, or operate as a payment of his debt to the drawer. Clavey v. Dolbin, Cas. temp. Hardw. 278. Jeune v. Ward, 2 Stark. 326; S. C. 1 B. & Ald. 653. Mason v. Barff, 2 B. & Ald. 26. Cox v. Troy, 5 B. & Ald. 474; S. C. 1 Dowl. & Ryl. 38. Overman v. Hoboken City Bank, 1 Vroom, 61, and 2 Vroom, 563. Exceptions overruled.