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$ 68. Virtual acceptance. An acceptance presupposes an existing bill, but the prospective drawee may make a contract with the drawer to accept a bill to be drawn. Such a contract, whether oral or in writing, is perfectly valid. In fact, that is the very contract which a bank makes with its customers upon receiving their deposits,
to pay their checks. But it is a contract which gives the payee or holder no rights, because he is not a party to it, although of course the drawer to whom the promise was made could sue and recover his damages, if any, in case the drawer refused to accept the bill when drawn. This view of the law, which gave the payee no rights against the drawee even when he took the bill knowing of the drawee's promise to pay it when drawn, was questioned in a series of decisions, which ultimately established the anomalous doctrine of so-called “virtual acceptances,” which is stated in the N. I. L. (44) as follows:
“An unconditional promise in writing to accept a bill, before it is drawn, is deemed an actual acceptance in favor of every person who, upon the faith thereof, receives the bill for value.”
It is to be noted that the promise, to operate as a virtual acceptance, must be unconditional and in writing, and that no holder can charge the drawee upon his unconditional written promise, unless he paid value for the instrument in reliance upon it.
(44) Sec. 135.
$ 69. Constructive acceptance. When a bill is presented to a drawee for acceptance, “the drawee is allowed twenty-four hours after presentment in which to decide whether or not he will accept the bill; but the acceptance, if given, dates as of the day of presentation” (45).
The holder may give the drawee additional time, if he sees fit, to come to a decision. During the interval, whether of twenty-four hours or longer, between the presentment for acceptance and the acceptance or refusal to accept, the bill may be in the possession of the holder or the drawee. If the holder retains the bill, no difficulties arise. If, at the end of twenty-four hours or such period as the holder may allow, the bill is not accepted, the holder may treat it as dishonored by non-acceptance. If, however, the bill is left in the possession of the drawee when first presented for acceptance, the drawee, instead of returning it accepted or not accepted, may keep or destroy it. His retention may be with or without the holder's consent. If he keeps it with the consent of the holder, no legal consequences flow from the retention, even though with the surrounding circumstances it indicates an intention to accept. For, no matter how clear the intention to accept is, it is ineffectual because not in writing and signed by the drawee” (46).
If the drawee retains or destroys the bill, without the holder's consent, it is clear that the holder may bring an
(45) Neg. Inst. Law, sec. 136.
(46) Neg. Inst. Law, sec. 132; Dickinson v. Marsh, 57 Mo. App. 566. But see Wisner v. Bank, 220 Pa. St. 21; State Bank v. Weiss, 91 N. Y. Supp. 276.
action to recover the instrument or its value (47). But the N. I. L. gives him extraordinary relief. He may treat the bill as accepted:
Sec. 137. Where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses within twentyfour hours after such delivery, or within such other period as the holder may allow, to return the bill accepted or nonaccepted to the holder, he will be deemed to have accepted the same.
This kind of acceptance by non-acceptance may well be termed a “constructive acceptance."
$ 70. Kinds of acceptance.
“An acceptance is either general or qualified. A general acceptance assents without qualification to the order of the drawer. A qualified acceptance in express terms varies the effect of the bill as drawn” (48).
A “virtual acceptance" can not be a qualified acceptance, because it is an unconditional promise to accept a bill complying with its terms. If the bill, when drawn, does not come within the terms of the promise, it is not “virtually accepted.” For obvious reasons also a constructive acceptance is always a general acceptance. But an acceptance on the bill or in a separate document may be qualified.
$ 71. Qualified acceptance.
(47) Jeune v. Ward, 1 B. & Ald. 653. (48) Neg. Inst. Law, sec. 139.
1. Conditional, that is to say, which makes payment by the acceptor dependent on the fulfillment of a condition therein stated;
2. Partial, that is to say, an acceptance to pay part only of the amount for which the bill is drawn;
3. Local, that is to say, an acceptance to pay only at a particular place;
4. Qualified as to time;
5. The acceptance of some one or more of the drawees, but not of all.
$ 72. Conditional acceptance. Qualified acceptances are binding upon the acceptor, subject to the qualification. For example, A drew a bill on B, a commission merchant, to cover the value of goods shipped to B to be sold by him. B accepted by a promise to pay when the goods were sold. It was held that B was bound by his conditional acceptance to pay the bill when the goods were sold (49).
§ 73. Partial acceptance. “I do accept this bill, to be paid half in money and half in bills” is a partial acceptance, which binds the acceptor to pay half of the bill (50). The promise to discharge half of the order “in bills” is not even a qualified assent to the order of the bill to pay money, and is therefore ineffective as an acceptance.
Local acceptance. A bill ordering A to pay B $100, accepted by A's promise to pay it at a particular place, e. g., at the First National Bank, does not have to be presented at the place specified in order to hold the
(49) Smith v. Abbot, 2 Strange, 1152.
acceptor. In other words, the obligation of the acceptor, notwithstanding its terms, is held not to be conditional upon
its presentment at the place named for payment (51). In consequence, such an acceptance“assents without qualification to the order of the drawer,” and is a general acceptance (52). But, if B accepted by promising to pay at the First National Bank only, he would be under no duty to pay unless the bill was there presented for payment, i. e., his obligation to pay would be conditional, and would not be an unqualified assent to the order. Such an acceptance is a “local" acceptance, and is binding according to its terms.
$ 75. Acceptance qualified as to time. If the drawee promises to pay at a time other than that designated in the bill, the acceptance is"qualified as to time," and binds the acceptor. Thus, if a bill payable Jan. 1, 1910, is presented to the drawee, and he promises to pay it Feb. 1, 1910, he is bound by his acceptance to pay on Feb. 1 (53).
$ 76. Acceptance by less than all of drawees. If the bill is drawn on several jointly, a promise by less than all to pay is not an unqualified assent to the order which directs all to pay. The promise, however, is treated as a qualified acceptance binding on the drawees who make it. The usual example of this rule is the unauthorized ac ceptance by a partner of a bill drawn on the firm. Since the acceptance is without authority, the other members
(51) Halstead v. Skelton, 5 Q. B. 86.