Kinney and another v. Lee, 10 Tex. 155

Lipscomb, J.

The bill sued on in this ease is not valid as a bill of exchange, because id is to be paid out of tlie proceeds of cattle, to be sold on account of the drawer, when they should lie received the drawees; and it is not certain whether there ever would be a sufficient amount received to pay the bill. (See Story on Bills of Exchange, sec. 48.) The bill having been accepted, as a general am-plance, did not impart validity to it as a hill; it only made the acceptors liable according to the terms oE the draft on its face; and, to make the acceptors liable on their acceptance, it must he. shown that the contingency on which the hill was drawn had happened — that the cattle had been sold on account of the drawer, and that a sufficient amount had been received to pay the. hill.

Suppose that the drawer had no cattle that drawees could sell; 'or, if ihe cattle were sold by the drawees, but no money had ever been received without the fault of the drawees: they would not be liable on their acceptance, because it did not go beyond the terms of the bill. On the liability of acceptors on a bill invalid as a bill of exchange, see note 8 to tire

section cited of Story on Bills of Exchange, p. 58; and for the acceptance, see Story on Bills of Exchange, sec. 238, 280. The original petition contained no averment that I hi: terms of the bill, which were the terms of the acceptance, had been made out and accomplished by the happening' of the contingencies — the sale of the cattle and the receptiou of the money. It did not, therefore, show any cause of action, and was subject to demurrer.

The amended petition made the necessary averments, but the proof did not sustain one of them, and the verdict was without evidence, and ought to have been set aside, and a new trial granted. The acceptance in this case imposes no greater liability than if it had been on a draft, or order drawn on an attorney at law, to pay to the payee the amount of a note, when collected, placed in his hands for collection, or owned by tho drawer. If tho money could never he collected it would impose no liability on the acceptor, and it would he tho same if drawn upon any other agent for collecting money.

TVe believe, that the bill, or order, was assignable under our statute. The filing of the petition in our practice is the commencement of the suit, and would interrupt the running of the statute of limitations. The court, erred in overruling''the motion for a new trial. The judgment is reversed and cause remanded for a new trial. Beversed and remanded. Note 28. — Williams v. Randon, ante 74.