Opinion by
W. D. Porter, J.,
The averments of fact contained in that part of plaintiff’s statement, the admission of which in evidence is the subject of the first assignment of error, were material to the issue being tried. The plaintiff had complied with rule number eight of the court below, in filing this statement, and the defendants had filed their answer as by the rule required. By the terms of the rule the “ material averments of fact,” contained in the statement, “ not directly and specifically traversed and denied by the answer shall be taken as admitted.” The learned counsel representing the defendants admitted that the answer did not traverse these averments of the statement, and as a consequence, under the rule, the averments were not only evidence but were conclusive of the facts. The first assignment of error is dismissed.
The purchaser of a draft is bound to look only to the terms of acceptance; and when he has acted in good faith, he is not to be prejudiced by the acts of the drawer. It was not proposed to show, in connection with the offer of evidence, the rejection of which is the subject of the third specification of error, that the bank was a party to or had notice of the fraud practiced by the drawer subsequently to the acceptance of the bill; and there was no error in the rejection of the evidence : Craig v. Sibbett & Jones, 15 Pa. 238. The fourth specification of error is, for' the same reason, dismissed.
The letter, the admission of which in evidence is the subject of the second assignment of error, has been lost, and is not printed in appellant’s paper-book. The notes of testimony as printed in appellant’s paper-book show that the plaintiff offered but one letter which was received in evidence. This is no doubt the letter referred to by the learned judge in his opinion [197] refusing a new trial. It was admitted that the defendants wrote and sent this letter to the bank on January 5, 1897, and the opinion quotes it as follows : “We want to withdraw our standing order to pay his drafts, and each week as he wants to draw we will notify you by letter or wire the amount we will pay for him.” This letter referred to the drawer of the bill in question and proved that up to that time the bank had a standing order to pay all his drafts on the defendants. This letter withdrew that unlimited authority and after its receipt the bank was only authorized to advance for the defendants to Henderson, the drawer, such amounts as they should from week to week specify by letter or telegram. The letter further stated that Henderson was the next week to ship some cattle to the defendants and he would want to draw on them for from $500 to $700 and they were to honor his draft as usual. This letter was an order on the plaintiff to cash the drafts of Henderson on the defendants, to such an amount as they should each week indicate by telegram or letter. It clearly proved that the bank had nothing to do with the consideration passing from Henderson to the defendants. To have rejected such evidence would have been manifest error.
This leaves for consideration the allegation of error upon which the appellant chiefly relies. The learned court below held that a promise made through the medium of a telegram, to pay a draft, is the legal equivalent of an acceptance in writing required by our statute, and upon the correctness of this ruling the whole case depends. There can be no question that, prior to the Act of May 10, 1881, P. L. 17, a promise to accept a bill or draft was tantamount to an acceptance. The promise to accept a bill for a fixed amount is equivalent to an acceptance not only as to the drawer, but as to every party who takes the bill upon the faith of that promise. “ The prevailing inducement for considering a promise to accept, as an acceptance, is that credit is thereby given to the bill. And this credit is given as effectually by a letter written before the date of the bill, as one written afterwards : ” Steman, Baker & Company v. Harrison & Hooper, 42 Pa. 49. The contention of the appellant is that since the passage of the act of 1881 a promise to accept can no longer be binding as an acceptance. We cannot so construe the statute. Prior to its enactment it had been [198] possible to charge a drawee upon evidence of an oral promise to accept a draft. The legislature in its wisdom determined that the law in that respect should be changed, and enacted: “ That no person within this state shall be charged, as an acceptor on a bill of exchange, draft or other contract for the payment of money exceeding $20.00, unless his acceptance shall be in writing signed by himself, or his legal agent.” The act does not provide that the acceptance must be upon the draft; it is therefore competent to show an acceptance which does not appear upon the instrument. The same legislative motive which led to the enactment of the statute of frauds and perjuries bears fruits in this legislation; the purpose was to free certain classes of contracts from the uncertainty involved in establishing them by oral evidence. The legislature made no attempt to prescribe what covenants should constitute an acceptance ; it did determine that the only legal evidence of such contract shall be in writing signed by the party or his agent. A contract which would have constituted a valid acceptance before the enactment of the statute, will if in writing and signed by the party or his agent still do so.
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Opinion by
W. D. Porter, J.,
The averments of fact contained in that part of plaintiff’s statement, the admission of which in evidence is the subject of the first assignment of error, were material to the issue being tried. The plaintiff had complied with rule number eight of the court below, in filing this statement, and the defendants had filed their answer as by the rule required. By the terms of the rule the “ material averments of fact,” contained in the statement, “ not directly and specifically traversed and denied by the answer shall be taken as admitted.” The learned counsel representing the defendants admitted that the answer did not traverse these averments of the statement, and as a consequence, under the rule, the averments were not only evidence but were conclusive of the facts. The first assignment of error is dismissed.
The purchaser of a draft is bound to look only to the terms of acceptance; and when he has acted in good faith, he is not to be prejudiced by the acts of the drawer. It was not proposed to show, in connection with the offer of evidence, the rejection of which is the subject of the third specification of error, that the bank was a party to or had notice of the fraud practiced by the drawer subsequently to the acceptance of the bill; and there was no error in the rejection of the evidence : Craig v. Sibbett & Jones, 15 Pa. 238. The fourth specification of error is, for' the same reason, dismissed.
The letter, the admission of which in evidence is the subject of the second assignment of error, has been lost, and is not printed in appellant’s paper-book. The notes of testimony as printed in appellant’s paper-book show that the plaintiff offered but one letter which was received in evidence. This is no doubt the letter referred to by the learned judge in his opinion [197] refusing a new trial. It was admitted that the defendants wrote and sent this letter to the bank on January 5, 1897, and the opinion quotes it as follows : “We want to withdraw our standing order to pay his drafts, and each week as he wants to draw we will notify you by letter or wire the amount we will pay for him.” This letter referred to the drawer of the bill in question and proved that up to that time the bank had a standing order to pay all his drafts on the defendants. This letter withdrew that unlimited authority and after its receipt the bank was only authorized to advance for the defendants to Henderson, the drawer, such amounts as they should from week to week specify by letter or telegram. The letter further stated that Henderson was the next week to ship some cattle to the defendants and he would want to draw on them for from $500 to $700 and they were to honor his draft as usual. This letter was an order on the plaintiff to cash the drafts of Henderson on the defendants, to such an amount as they should each week indicate by telegram or letter. It clearly proved that the bank had nothing to do with the consideration passing from Henderson to the defendants. To have rejected such evidence would have been manifest error.
This leaves for consideration the allegation of error upon which the appellant chiefly relies. The learned court below held that a promise made through the medium of a telegram, to pay a draft, is the legal equivalent of an acceptance in writing required by our statute, and upon the correctness of this ruling the whole case depends. There can be no question that, prior to the Act of May 10, 1881, P. L. 17, a promise to accept a bill or draft was tantamount to an acceptance. The promise to accept a bill for a fixed amount is equivalent to an acceptance not only as to the drawer, but as to every party who takes the bill upon the faith of that promise. “ The prevailing inducement for considering a promise to accept, as an acceptance, is that credit is thereby given to the bill. And this credit is given as effectually by a letter written before the date of the bill, as one written afterwards : ” Steman, Baker & Company v. Harrison & Hooper, 42 Pa. 49. The contention of the appellant is that since the passage of the act of 1881 a promise to accept can no longer be binding as an acceptance. We cannot so construe the statute. Prior to its enactment it had been [198] possible to charge a drawee upon evidence of an oral promise to accept a draft. The legislature in its wisdom determined that the law in that respect should be changed, and enacted: “ That no person within this state shall be charged, as an acceptor on a bill of exchange, draft or other contract for the payment of money exceeding $20.00, unless his acceptance shall be in writing signed by himself, or his legal agent.” The act does not provide that the acceptance must be upon the draft; it is therefore competent to show an acceptance which does not appear upon the instrument. The same legislative motive which led to the enactment of the statute of frauds and perjuries bears fruits in this legislation; the purpose was to free certain classes of contracts from the uncertainty involved in establishing them by oral evidence. The legislature made no attempt to prescribe what covenants should constitute an acceptance ; it did determine that the only legal evidence of such contract shall be in writing signed by the party or his agent. A contract which would have constituted a valid acceptance before the enactment of the statute, will if in writing and signed by the party or his agent still do so.
On January 7,1897, the plaintiff had in its possession the letter from the defendants above recited. On that day the defendants telegraphed to Henderson that they would pay his draft for $900. The defendants in their affidavit of defense say; “ It is also true that said Henderson requested the defendants to pay a draft of $900, being the same now sued on, and that they promised said Henderson that they would pay the same.” This is a clear admission of the identity of the draft, and the defendants admitted that they sent the telegram. Henderson took this telegram and the draft in question and presented them to the bank, and the bank relying upon the telegram and the letter which they .held paid to Henderson the amount of the draft. The promise of the defendants, contained in the telegram, was direct, absolute and unconditional. It was a contract which was sufficient in substance to hold the defendants liable as acceptors of the bill: Coffman v. Campbell, 87 Ill. 98; Central Savings Bank v. Richards, 109 Mass. 413. The requirements of the Act of 1881 were satisfied if the evidence of this contract was a writing signed by the party. The defendants wrote the telegram and deposited it with the telegraph company, from the [199] very nature of tbe transaction they made the telegraph company their agent for the purpose of transmitting the message to Henderson. One who acts upon a promise contained in a message received through a telegraph company has to take the risk of the authenticity of the message. When he proves that the person sought to be charged wrote and directed the message to be sent, he is in exactly the same position as if the person upon whose telegraphic promise he has acted had personally delivered to him the written instrument, the original message. The writing, signed by these defendants which constituted an acceptance of this draft, is the original telegram, the production of which they waived, consenting that a copy should be offered in evidence: Whilden v. Merchants’ & Planters’ Nat. Bank, 64 Ala. 29; Brinkman v. Hunter, 78 Mo. 172; Molson’s Bank v. Howard, 40 N. Y. Superior Ct. 15. None of the specifications of error are well founded.
The judgment is affirmed.