Lucas v. Ladew

28 Mo. 342

• Court: Supreme Court of Missouri
• Decided: March 15, 1859
• Status: Published

Opinion

Napton, Judge,

delivered the opinion of the court.

The instructions upon which this case was tried were, in our opinion, correct. It is well settled, both in England and America, that, upon protest for non acceptance and notice, the drawer and endorsers of a bill are responsible immediately to the holder, and the failure to present the bill again for payment has no effect in discharging that liability. Whether the bill in this case was presented for payment on the 20th or 21st was therefore immaterial, as it was presented for acceptance on the 17th and acceptance was refused, and it was duly protested and notice sent immediately to the defendants. (Story on Bills, § 321, 322, 366; Watson v. Turpley, 18 How. 517; Renshaw v. Triplett, 23 Mo. 213.)

By the common law, bills payable at sight are entitled to days of grace, and although grace upon sight bills is abolished by our statute (R. C. 1855, p. 298, § 18), yet we presume the common law to prevail in a sister state or territory, in the absence of proof of any change by legislative enactments. (Houghtaling v. Ball, 19 Mo. 84; Abell v. Douglass, 4 Denio, 375 ; Stout v. Wood, 1 Blackf. 71; Ellis v. White, 25 Ala. 504.) As the bill sued on was entitled to grace, the instruction asked by the defendants was properly refused.

The opinion of Mr. Drake, the plaintiffs’ attorney, in relation to the liability of Smoot, Russell & Co., was properly excluded, not because there was any thing of a confidential nature in it, but because it was an opinion and therefore had nothing to do with the ease.

Whether Lucas & Co. had collected the bill from Smoot, R. & Co. and were acting as mere agents of the latter in this suit, was submitted to the jury at the request of the defendants. We do not consider the plaintiffs as necessarily occupying such a position from the mere fact of their retaining a balance in their hands sufficient to cover the bill, with the consent of S., R. & Co., nor from the additional fact that S., R. & Co. agreed to, pay the bill if the plaintiffs should not succeed in holding the defendants liable, and this is the most which the correspondence between the parties would appear to establish. But this was a question of fact upon which the jury have passed, and there is certainly no ground for disturbing their verdict.

The other judges concurring, the judgment is affirmed.