Nat. H. Watrous v. M. H. Halbrook, 39 Tex. 572

Ogden, P. J. This suit was brought by the heirs of John S. Storrs against the estate of D. E. Watrous, on the following instrument of writing, viz.: “$2771.62. Montevallo, June 1, 1858. “Ten months after date pay to the order of John S. Storrs two thousand seven hundred and seventy-one and tVv dollars, value received, and charge to account of “D. E. Watrous‘ “T9-—, Mobile, AlaT The petition charged that for a valuable consideration from John S. Storrs to him thereunto moving, said Daniel E.

Watrous executed and delivered to said Storrs the instrument of writing above set out, and that thereby saidWatrous undertook, and bound himself, and became liable to pay said sum therein specified. To this petition the defendants filed a general and special demurrer, which were both overruled by the court, and judgment was rendered for the plaintiffs, and the defendants took their bills of exception to the ruling of the court, and brought the case here by appeal.

The only question now presented for decision is, does this instrument, independent of any allegations of ownership for a valuable consideration, or promise to pay, give the holder any cause of action. This instrument is not a promissory note in its ordinary form, nor can it be treated as such, since there is no promise to pay in any event. The instrument is directed to no one, and therefore cannot be considered a draft or bill of exchange.

Had it been accepted by any one, that acceptance would have constituted a promise to pay in the acceptor, and then the maker might have become liable as surety or guarantor; but as there is no drawee or acceptor, the maker cannot, without allegations and proof of other facts setting forth and establishing his liability, be held responsible. The instrument, with the exception of the want of a drawee, is in the ordinary form of an accommodation bill or draft, on which the maker cannot be held liable until after an acceptance or non-acceptance.

We think the instrument, as it is, is an imperfect bill or draft, for the payment of which no one is liable. With proper averments, showing the objects and purpose of the parties, and that the maker intended to bind himself in the first instance to pay the same, he might possibly be held responsible without a drawee or acceptor, but not otherwise. We can see no material difference between the writing here sued on and the one in Ball v.

Allen, 15 Mass., 433, in which the court says: “But the mere possession of a paper drawn in the form of an order, there being no drawee in existence, we think cannot entitle the possessor to an action in any form.” The same doctrine may be drawn from Petro v. Reynolds, 9 Exch. R., 414, and in Davis v. Clark, 47 Eng. Com. Law R., 177. From these authorities, and the reason of law governing instruments of this or the like character, we are clearly of the opinion that the petition in this case did not set out a good cause of action, and that the court erred in overruling defendants’ special demurrer to the same.

We think the demurrer should have been sustained and the plaintiffs permitted to amend their pleadings, that, if desired, they might, by proper averments and proof, establish the liability of the maker or drawer in the first instance, without an acceptance or non-acceptance. The judgment of the District Court is reversed and the cause remanded. Reversed and remanded.