1812. June 2. [ 43 ] [*44] RUCKER AND OTHERS V. HILLER. (16 East, 43-45; S. C. at Nisi Prius, 3 Camp. 217-219.) Where one draws a bill of exchange with a bona fide reasonable expectation of having assets in the hands of the drawee; as by having shipped goods on his own account which were on their way to the drawee, but without the bill of lading or invoice; the drawer is entitled to notice of the dishonour, though in fact the goods had not come to the hands of the drawee at the time when the bill was presented for acceptance. TADDY moved to set aside a nonsuit in this case, and stated that the plaintiffs sued as indorsees of a bill of exchange against the drawer; and at the trial before Lord Ellenborough, Ch. J. at Guildhall were nonsuited, † for want of proving notice to the drawer of the non-acceptance of the bill by the drawee; it appearing that the drawer, though he had no effects in the drawee's hands at the time of drawing the bill, or when it was presented for acceptance, had yet drawn in expectation of funds in time to satisfy the bill; having shipped goods upon his own account, which were on their way to the drawee; but not having remitted to him the bills of lading or invoices; in consequence of which the drawee had returned the bill when presented to him, marked "no effects." This notification, he contended, dispensed with the necessity of giving notice of the dishonour to the drawer: as it would have been nugatory to give notice. (Reader, who was counsel for the defendant at the trial, observed, that the fact had turned out to be that the drawee had *refused to take to the goods because they were damaged.) The observations of Lord ELLEN- If there be a reasonable expecta- custom of merchants need not be observed. The object of notice is not merely to enable the drawer to withdraw his effects from the hands of the drawee, but to provide for payment of the bill thus suddenly cast upon himself, and to make prompt arrangements suited to this unexpected emergency. Where the drawer has solid reason to believe that the bill will be honoured, he is necessarily damnified, and therefore he is discharged, by the laches of the holder." LORD ELLENBOROUGH, Ch. J.: Where the drawer draws his bill on the bona fide expectation of assets in the hands of the drawee to answer it, it would be carrying the case of Bickerdike v. Bollman + further than has ever been done, if he were not at all events entitled to notice of the dishonour. And I know the opinion of my Lord Chancellor to be that the doctrine of that case ought not to be pushed further. The case is very different where the party knows that he has no right to draw the bill. There are many occasions where a drawee may be justified in refusing from motives of prudence to accept a bill, on which notice ought nevertheless to be given to the drawer: and if we were to extend the exception further, it would come at last to a general dispensation with notice of the dishonour in all cases where the drawee had not assets in hand at the very time of presenting the bill; and thus get rid of the general rule requiring notice, than which nothing is more convenient in the commercial world. A bonâ fide reasonable expectation of assets in the hands of the drawee has been several times held to be sufficient to entitle the drawer to notice of the dishonour, though such expectation may ultimately have failed to be realized. We held this opinion in the case of Brown v. Maffey so lately as in last Hilary Term; and cannot rescind our determinations. If we are still supposed to be in an error, the plaintiffs may bring another action, and tender a bill of exceptions. BAYLEY, J.: The general rule requires notice of the dishonour to be given in due time to the drawer; and it lay upon the plaintiffs to shew that he could not possibly be injured by the want of it. It would be somewhat hard to call upon a drawer towards the end of six years after the bill given; and when he objected that he had no notice of the dishonour, to tell him that he had no effects in the drawee's hands at the time when the bill was pre† 1 R. R. 242 (1 T. R. 405). But v. Bollman, 45 & 46 Vict. c. 61, s. 50 quare whether the rule is not carried (2) (c.) (4).—R. C. RUCKER ข. HILLER. [45] RUCKER v. HILLER. sented; though they might have come to his hands the very day after, and the drawer might have settled his accounts with the drawee in the mean time upon the presumption that the bill was paid. Per CURIAM: Rule refused. 1812. June 2. [ 45 ] [ *46 ] HUMPHRIES v. CARVALHO. (16 East, 45-48.) A broker, on a Saturday, sold certain goods of the defendant to the plaintiff for a stipulated price, subject to the plaintiff's approval of the quality upon the Monday following, and sent the sold-note to the plaintiff on the Saturday, marked with the words "Quality to be approved on Monday;" but did not send the bought-note to the defendant then, because he had met and informed him of the contract on the same day; but, the plaintiff not having signified his disapproval of the contract on the Monday, the broker sent the sold-note to the defendant on the Friday next ensuing, with the words "Quality to be approved on Monday" struck out. Held that the defendant was bound, although on receiving the note, he promptly signified his disaffirmance of the contract. THE plaintiff declared in assumpsit upon a special agreement made on (Saturday) the 21st of Dec. 1811, whereby he agreed to buy of the defendant, and the defendant sold to him, five casks of ipecacuanha at 13s. 6d. per pound, duty paid, the quality to be approved on Monday then next, paying for the same at a discount of 21. 10s. per cent. in fourteen days, or by bill at four months: and then alleged as a breach, that the defendant did not nor would, though requested on the Monday next, &c. the 23rd of December, 1811, produce the said *casks, &c. to the plaintiff for his approval and inspection as to quality, nor had the defendant yet delivered the said casks, &c.; but refused so to do. This was laid in various ways. At the trial before Lord Ellenborough, Ch. J. in London, the plaintiff called as a witness the broker who made the contract stated in the declaration between the parties; and he proved that he had agreed to purchase the five casks of ipecacuanha of the defendant for the plaintiff, at the price stated, on Saturday the 21st of v. CARVALHO. December, 1811, subject to the plaintiff's approval of the quality HUMPHRIES on the Monday following; and that the written note of the contract (commonly called the bought-note,) which he sent to the plaintiff on the Saturday, had these words on the face of it, Quality to be approved on Monday;" but no sold-note was sent on that day to the defendant, because the broker having met him on the same day, and told him that he had sold the ipecacuanha to the plaintiff, upon the terms stated, there was no occasion to send him a written note. The broker further proved that it was the custom of the trade for either party to return the contract, if he disapproved of it, within twenty-four hours. That the plaintiff not having returned the contract, nor signified any disapproval, the broker on Friday the 27th of December sent the sold-note to the defendant, with the words "Quality to be approved on Monday" struck out; but the defendant returned it again immediately to the broker; upon which the broker went to the defendant on the same day, and insisted on his completing the contract; but he refused to do so, on account of its not having been sent to him on the Monday. On these facts his Lordship was of opinion that the defendant having agreed on the Saturday to the actual sale of the commodity, at the price stated, subject to the plaintiff's approval of the quality on the Monday, and the plaintiff having accepted the contract on those terms, and not having returned it on the Monday, which was to be taken as an approval by him of the contract, both parties were bound by it; and under that direction. the jury found a verdict for the plaintiff for 417. 18s. 9d. Scarlett now moved to set aside the verdict, and enter a nonsuit, or for a new trial, upon the ground that by the terms of the contract it was not enough that the plaintiff did not signify his dissent on the Monday; but not having then signified his approval, that the contract at least remained open until he had so done, and that in the mean time it was open to the other contracting party to disaffirm it; for every contract must in its nature be binding upon both parties, or open to be disaffirmed by each. As in Cooke v. Oxley,t where the contract stated was † 1 R. R. 783 (3 T. R. 653). [ *47 ] v. CARVALHO. HUMPHRIES that the defendant had proposed to the plaintiff to sell and deliver to him goods at a certain price; whereupon the plaintiff had desired the defendant to give him time till four o'clock of the same day to agree or dissent to the proposal; and thereupon the defendant proposed to the plaintiff to sell and deliver to him the goods upon those terms, if the plaintiff would agree to purchase them upon the terms, and would give the defendant notice thereof before four o'clock on that day: and then the plaintiff averred that he did agree and did give the required notice; but that the defendant on request did not deliver the goods. After verdict, the judgment was arrested, because the engagement was not mutually binding, and therefore nudum pactum. Here there was a sale-note sent, and an actual sale made by the defendant through the intervention of the broker, who communicated to the defendant on the same day that he had sold the goods; and it was not merely an offer to sell, as in that case; but the buyer had an option of renouncing the purchase on the Monday, which he did not do; and therefore it stood absolute. GROSE, J. agreed. BAYLEY, J. :t The argument of the defendant is, that if a contract give an option to one of the parties to determine it, the law will give the like option to the other, until both are bound: but here neither of the parties had an option after the Monday; for the plaintiff not having renounced the contract within that time, must be taken to have approved of it. The question in Cooke v. Oxley arose upon the record; and a writ of error was afterwards brought upon the judgment of this Court; by which it appears that the objection made was that there was only a proposal of sale by the one party, and no allegation that the other party had acceded to the contract of sale. It Le Blanc, J. was absent at Lancaster. Rule refused. |