WOLFE ET AL vs. JEWETT, 10 La. 383

Bullard, J., delivered tbe opinion of the court. This is an action by the payees against the drawers of two bills of exchange, on the usual allegations of protest for non-acceptance, and due notice to the defendant.

The defence set up is : First, That the defendant drew the bills as the agent of Merriam & Broaddus, on whom they were drawn, and who were at the time indebted to the plaintiffs in the same amount by notes, and that the plaintiffs well knew (hat, he was agent, and dealt with him in that character; Second, That the bills were not presented in due time and at the proper place, for acceptance, and that due notice of their dishonor, was not given to the defendant as drawer.

It is not contested, that the consideration for which the bills in question were drawn, was a pre-existing debt of Merriam & Broaddus due to the plaintiffs, and that the drawing of the bills was not to be considered as a novation of that debt. It is equally clear, that Jewett was known to the plaintiffs as the agent of that house, and it is not pretended that he personally owed the plaintiffs any thing at that time.

The only question therefore, under this part of the case, is whether both parties understood at the time, that Jewett, by drawing the bills, wnthout expressing his capacity as agent, intended to render himself personally liable to the plaintiffs, in the event of their dishonor. In a letter of the plaintiffs to their attorney, remitting the original notes of Merriam & Broaddus for collection, they say, “ a few days before the above notes became due, Gen.

Ivers Jewett, of Fitchburg, Massachusetts, agent of Merriam & Broaddus, proposed to give his drafts on those gentlemen, at four months, for the above notes, as he said they had not provided funds for them, and they would not be paid at maturity. Not having heard any thing from Merriam & Broaddus, and Gen.

Jewett being reputed worth some property, we agreed to receive the drafts, but took care not to give up the original notes, &c.” The counsel for the plaintiffs contends, that although they knew Jewett as the agent of Merriam & Broaddus, yet the expressions in this letter clearly evince their intention to hold him personally liable on these bills of exchange. In cases of this kind the inquiry should be, what had the plaintiffs reason to believe was the intention and understanding of the defendant, rather than what was their intention, which was not disclosed at the time.

He was the avowed and acknowledged agent of their debtors, and proposed to draw on his principals for the amount of a debt of theirs, then about to fail due. That proposition was accepted by the plaintiffs, and it is now contended, that the defendant having signed the bills, without expressing on their face his capacity as agent, intended to make himself personally responsible. The party sought to be charged may show that he acted as agent in drawing the bill sued on, and in this respect is to be considered in the same light as showing a want of consideration, and in either case he is not liable.

A person may draw, as agent, upon his principal, for a debt not personal to himself, but due by the principal to the payees, without expressing the agency on the face of the bill. A bill or note must be presented for acceptance at the place specified on its face, and duly protested for non-acceptance, in case no one appears or accepts it, and notice thereof given to the drawer. If the drawee of a bill cannot be found at the place where the bill states him to reside, and it appears that be never resided there, or has absconded, the bill is to be considered as dishonored.

We find it difficult if not impossible to distinguish this case from that of Krumbaar vs. Ludeling, 3 Martin, 640.

In that case the court said, “ the attempt of Ludeling to show, that he acted merely as agent for the Amelungs, in drawing the bill on which this suit is commenced, can be considered properly in no other light, than an offer to show a want of consideration in a written agreement, and that for this reason he is not bound to fulfil any obligation which might otherwise have resulted from it.” In both cases, the agents drew upon their principals, for a debt not personal to themselves, but due by their principals to the payees, without expressing their agency on the face of the bills.

In relation to the second ground of defence, to wit: that even supposing the bills to have been drawn by the defendant on his personal responsibility, they were not presented at the proper place, and in due time, and that due notice was not given of their dishonor. It appears to us clear, that the bills ought to have been presented at New-Orleans, where they were made payable, and if not accepted, protested, and notice given to the drawer.

It is true the drawees did not reside there, but at Alexandria; but it is a general rule, that if the drawee of a bill cannot be found at the place where the bill states him to reside, and it appears that he never resided there, or has absconded, the bill is to be considered as dishonored. Chitty, 213. In the same letter of the plaintiffs, above referred to, they say, u these drafts were all remitted to James H. Field & Co. New-Orleans, for acceptance, by Metriam & Broaddus, or their agent. Mr. Merriam was lying ill of a fever on their arrival, and died a day or two afterwards.

Their agent, Mr. -, refused to accept them, on which, Messrs. Field & Co. forwarded the drafts to Alexandria, for acceptance by Mr. Broaddus.” This is a distinct admission, on the part of the plaintiffs, that one of the partners was in New-Orleans at the time the bills arrived, and that they had an agent there, to whom they were presented, and yet no protest was., made, and no notice was given of their dishonor, but they were forwarded to Alexandria, where they were not made payable, and where the drawer never engaged they would be accepted.

We are therefore of opinion, that the defence is sustained on both grounds, and it is ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and ours is for the defendant, with costs in both courts.