Kennedy's ex'rs v. Geddes & Co., 3 Ala. 581

COLLIER, C. J. The questions now presented for decision, are. essentially different from those that were considered when this cause was here at a previous term.

The main q,ues-fion then was, “whether a verbal promise, to accept a bill, not in esse, will, in law, amount to an acceptance.” While the Court recognized the principle, “ that a promise, in writing, to accept a bill of exchange, not in esse, will be in law, an acceptance, if the bill be taken on the faith of such promise,” they were of opinion;.fhat as in this case, “ it was uncertain for what amount the bill was to be drawn, when it was to be drawn, .and when payable,” the promise did not amount to an acceptance. 8 Porter’s Rep. 263.

By taking issue upon the declaration, there was a tacit ad* •mission, that the cause of action was legally sufficient, and the questions arising at the trial, relate to the admissibility and sufficiency of the proof adduced by the parties, and the charge to the jury.. But if the defendant had interposed a demurrer to either of the counts of the declaration, it would have availed him nothing. The first count, is undeniably good, while it is insisted, that the second, is. defective, in seeking to recover upon a promise obnoxious to the statute of frauds. ‘ This objection cannot be maintained by authority.

In Townsley v. Sumrall, 2 Peters’ Rep. 170, which was an action upon a promise made by the defendant, as a partner in a mercantile concern, that the firm w'ould accept a draft, or drafts, to be drawn on them by one Waters, in favor of the plaintiff. The Court was of opinion that the action was maintainable, notwithstanding the number and amount of the bills may not have been stipulated by the parties; and that it was not a promise to answer for the debt, &c. of another within the statute of frauds, but a primary and independent engagement. So, in Boyce and Henry v. Edwards, 4 Pet.

Rep. 122, the Court say, “ the distinction between an action on a bill, as an accepted bill, and one founded on a breach of promise to accept, seems not to have been adverted to. But the evidence necessary to support the one or the other, is materially different. To maintain the formér, as has been already shown, the promise must be applied to tlie particular bill alleged in the declaration to have been accepted.

In the latter, the evidence may be of a more general character, and the authority to draw, maybe collected from the circumstances, and extended to all bills, coming fairly within the scope of the promise.” See also, Chitty on Con. 4 Am. ed. 348; Chitty on Bills, 9 Am. ed. 308, and cases there cited. Let these citations, suffice to show, that the second count discloses a good4 cause of action in averring the promise to accept, for> goods to-be sold to Carpenter, the sale of the goods upon the faith of the ■ promise, the drawing, of the bilhby Carpenter,-and the refusal of Kennedy to accept it.

The papers offered by the defendants to impeach-the credibility of the witness, Patterson, are, an account of'Samuel A. • Carpenter with John B. Page &: Co. dated in 1833, a note of Carpenter to Joshua Kennedy, dated September 19th 1833, for the'payment of three hundred and fifteen dollars and nine cents, at four months, and a bill drawn by Carpenter on Kennedy, on the 16thNovember, 1833; for. the payment to JohnB. Page' & Co. of the sum of four hundred and ninety-four dollars twenty-two cents, at four months date.

We are unable, to discover, from any thing in the record, what relation these papers-had to the testimony of the witness, and are consequently of opinion, that they were properly rejected by the County .Court, as-irrelevant. . , The evidence adduced by the plaintiffs, if credited:by the-jury, was entirely sufficient to authorise their verdict. It proves ■ a promise, by- the testator, to accept a bill for goods to be sold-by the plaintiffs to Carpenter, the sale upon, the faith'of the promise, the drawing:of the bill in a reasonable time thereafter,, its presentation>to Kennedy, ánd his refusal to accept.

It was no objection-to the bill, that it was payable four, months- after-date, and that-interest was added on the account after, sixty days.. The witness states that such was the usual course of dealing, where accounts were-of the character of that made by Carpenter, and-we must intend, that the testator’s promise( was made in reference to the mercantile usage in such cases ; the more especially as he placed his refusal to accept the bill upon grounds entirely distinct from the length of time it had to run, or the addition ..of interest upon the account.

But it is objected, that the bill shouldbiave been produced at the-trialj ór its absence-more satisfactorily accounted for. It appears from the evidence, that upondts pi’esentation to the testator, he desired it to-be left: with him for a few days, that he might, determine whether he would accept-it. It is not shown that he-everceturnedfit, or that He was called omby the plaintiffs,.or. their, agent.to-learn his determination.

The conversation, which Patterson states in his deposition, he had with the testator, appears to have taken place more than two years after the bill was" left withhim,-for acceptance.- The reasonable inference then is,-that the bill remained' with the testator, and its non-production uponá-notice to his1 executors authoris-ed the admission-of parol evidence of its contents.- It must be admittedthat the proceedings in the County Court, tb bring in the executors of Kennedy,- are loose and informal.

The death of the testator is-suggested of record, and a scire facias directed to issue to his representatives, without stating who they are, and whether executors' or administrators. Á'scire facias issued,-in which Robert L. Walker and William-R. Hallett', are described as executors; which apt pears to have been duly served1 upon them, but without formally making them'parties':- the cause was tried by a jury. The statement of the case in the margin of the judgment, is “Robert Geddes & Co. v.

Joshua Kennedy’s executors.” The entry recites, that-the parties came by their attornies, and there-upon came a jury, &c.; the judgment is, “ that the plaintiffs re-cover against the defendants, to-be levied of-the goods and chattels of the said Joshua Kennedy, deceased, in-the hands of William R. Hallett & Robert L.

Walker, his executo'rs to be administered” &c.’ The description of- the plaintiffs in error, in the scire facias, as executors of the original defendant, the service of that process on them, which required them to shew cause why the suit should not be revived, the designation of them in the judgment, as executors,-and the recital that the executors appeared and went to trial, was a Waiver of all-inform--ality, and equivalent tb an express absent to be made' defendants. The charge to the jury, seems to us, to be entirely consistent-with the law-, as we have laid if down.

It obviously contemplates that the plaintiffs must have sold goods to Carpenter,upon the faith of Kennedy’s promise. The charge contemplates in tolidem verbis, the promise to accept for goods tb be’ sold, the sale of the goods, and the refusal- to accept. This,taken in connection with the evidence in the record, sufficiently shows the meaning of the Court, was, that the sale of-the goods should have been made,-in-reliance upon the testa- • tor’s promise for payment.- This view is decisive of the case, and the consequence is, the judgment of the County Court is affirflae.d.