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of the firm are not bound, but the partner who wrote the acceptance is held (54).
§ 77. Acceptance by person not drawee. If a person not designated in the bill as drawee attempts to accept it, the attempt results neither in a general nor in a qualified acceptance, and the would be acceptor does not become liable as such (55). No one except the designated drawee can accept a bill (56).
$ 78. Holder may require an unqualified acceptance written on bill. Although extrinsic written acceptances, virtual acceptances, constructive acceptances, and qualified acceptances are enforceable, the holder is entitled to have a general acceptance written on the bill itself. If this is refused, and an extrinsic written acceptance or a qualified acceptance is offered, the holder may treat the refusal as an absolute refusal to accept, and proceed accordingly. The N. I. L. provides:
Sec. 133. The holder of a bill presenting the same for acceptance may require that the acceptance be written on the bill, and, if such request is refused, may treat the bill as dishonored.
Sec. 142. The holder may refuse to take a qualified acceptance, and if he does not obtain an unqualified acceptance, he may treat the bill as dishonored by non-acceptance.
$ 79. Effect of taking qualified acceptance.
“When a qualified acceptance is taken, the drawer and
(54) (55) (56)
Owen v. Van Ulster, 20 L. J. C. P. 61.
indorsers are discharged from liability on the bill, unless they have expressly or impliedly authorized the holder to take a qualified acceptance, or subsequently assent thereto” (57).
For example, if A draws a bill on B, payable to C, who indorses and transfers the bill to D, and D takes a qualified acceptance from B without the assent of A and C, they are discharged and D must thereafter look to D alone for payment. But
“When the drawer or indorser receives notice of a qualified acceptance, he must, within a reasonable time, express his dissent to the holder, or he will be deemed to have assented thereto” (58).
(57) Neg. Inst. Law, sec. 142. (58) Neg. Inst. Law, sec. 142.
$ 80. Transfer generally. The payee or bearer of a negotiable instrument may either hold the instrument and collect it at maturity, or he may negotiate, i. e., transfer it to another. The instrument, “if payable to bearer is negotiated by delivery; if payable to order it is negotiated by the indorsement of the holder” (1). Or, the instrument may be transferred by operation of law, for example, by the death of the payee or bearer, in which event it becomes the property of his executor or administrator; or by his bankruptcy, when it passes to his trustee in bankruptcy.
$ 81. Who may negotiate. Furthermore, the transferee of the payee or first bearer may negotiate the instrument. The rule then is that any owner of a bill or note may negotiate it. In Stone v. Rawlinson (2) the defendants made a note payable to Watson, or order. Watson died, and his administrators indorsed the note to the plaintiff. It was objected that the administrator's indorsement did not transfer the note to the plaintiff. But the court held that the plaintiff could recover, saying: “Whoever has the absolute property in a bill
(1) Neg. Inst. Law, sec, 30. (2) Willes, 559.
may assign it as he pleases.” But all of the payees or indorsers, i. e., all the owners must join in the transfer.
Sec. 41. Where an instrument is payable to the order of two or more payees or indorsees who are not partners, all must indorse, unless the one indorsing has authority to indorse for the others (3).
Thus, if a note, payable to A and B, is indorsed by A in the names of A and B, without authority from B, and delivered to the plaintiff, the transfer, not being the act of both owners, does not pass title to the plaintiff (4). Again, an indorsement of a note payable to a firm, by one partner in his own name, even if authorized by the other partners, does not transfer the instrument, because the indorsement is not that of all the owners (5).
$ 82. Transfer by delivery. A bill or note payable to bearer is transferred by delivery without indorsement (6). Delivery may be voluntary, or it may be involuntary as in the case of theft.
A voluntary delivery may be intended as a sale or gift to the transferee, or the transfer may be for the purpose of enabling the transferee to collect the instrument for the transferor. Whatever the intention, the delivery passes title, makes the transferee the owner, and, as a consequence, entitled to bring an action on the instrument and collect the proceeds. What the transferee does with the proceeds after their receipt by him does not affect the
(3) Neg. Inst. Law, sec. 41.
question. If the transfer was a gift or sale, he, of course, keeps them for himself; if it was simply for the purpose of collection, he holds them for his transferor. But in any event his rights on the instrument are complete and absolute. The effect of the delivery of a bearer instrument is illustrated by two cases. In the first, Mrs. Remsen was the holder of a note payable to bearer made by the defendant. Mrs. Remsen was indebted to the defendant, and, had she sued him on the note, he might have set off the amount she owed him against the amount due on the note. But she delivered the note to her agent, the plaintiff, for the purpose of having the action brought by him. It was held that the plaintiff had become the owner of the note by the delivery and could maintain an action as such, and the defendant was not allowed to set off his debt, because it was not due from the plaintiff who was now the owner (7). In the second case, the Rev. Dr. Walker was the holder of a bill payable to bearer. Wishing to obtain the money due on the bill, but unwilling that his name should appear as plaintiff in an action at law, he requested the plaintiff to bring an action on the bill for him. The bill was not delivered to the plaintiff. It was held that the plaintiff was not the owner of the instrument and was not entitled to sue upon it (8).
An involuntary, as well as a voluntary delivery passes title; but, as we have seen (9) the character of the delivery makes it unconscientious for the thief, for example,
(7) Mauran v. Lamb, 7 Cowen, 174 (N. Y.).