Exchequer Reports.

EASTER TERM, 20 VICT.

FANSHAWE V. PEET, Public Officer, &c.

of

1857.

April 15 & 17.

Upon a bill ber 8, 1856, dated Septem

B. & Co., pay

drawn on

able in London at four months

after date. An

acceptance was

written as

ACTION against the defendant as the public officer the Union Bank of Manchester for money lent and money had and received. Plea,-that the plaintiff before and at the commencement of the suit was and still is indebted to the bank in an amount equal to the plaintiff's claim which the bank offers to set-off, on a bill of exchange for 3914. 1s. 7d., drawn by the plaintiff, payable four months" Accepted. after date, on Begbie, Wiseman & Co., accepted by them, and indorsed by the plaintiff to the bank: that Begbie, Wiseman & Co. did not pay the bill when due, though the same was duly presented to them for payment, of which

the plaintiff had notice. Issue thereon.

follows:

Payable at Messrs. Overend, Gurney &

Co., London. Due 11 Decr. 1856. B.& Co."

No. 1756.

The words before the signature were

At the trial before Martin, B., at the last Liverpool written in red

assizes, without a jury, it was admitted that the plaintiff account with the Union Bank of Manchester

had an

as his bankers, in respect of which the bank owed him

ink and in a

hand different from the signature.-Held, question of law

that if it was a

the bill must be taken to have been accepted according to its tenor; and that if it was a question of fact, there was evidence that the words "due 11 Decr. 1856" were not intended to qualify the acceptance.

VOL. II.-N. 8.

B

ЕХСИ.

1857.

FANSHAWE

v.

PEET.

3911. 1s. 7d., subject to any right of set-off on a bill of exchange which was as follows:

No. £391: 1s.: 7:

Manchester, 8th September, 1856.

Four months after date pay to the order of myself Three hundred ninety-one pound 1 72. value received.

The signature of the acceptors was in a different hand from the words written above it, the whole of which were in red ink. The bill was indorsed by the plaintiff to the Union Bank several days before the 11th of December, 1856, but was not presented for payment till the 10th of January, 1857, the 11th being Sunday. It was admitted that on the 11th of December Overend, Gurney & Co. had in their hands funds of Begbie, Wiseman & Co. to an amount exceeding the sum mentioned in the bill.

Upon these facts the defendant contended that the bank, not having presented the bill on the 11th of December, had made it their own by laches. The learned Judge directed a verdict for the defendant, giving leave to the plaintiff to move to enter a verdict for him.

Hugh Hill now moved accordingly.-This bill was accepted, payable on the 11th December. The drawee of a bill of exchange is at liberty to qualify his acceptance, as by annexing a condition, or by enlarging or diminishing the time of payment: per Richardson, J., Rowe v. Young (a). That case shews that in ascertaining what the (a) 2 Brod. & B. 165. See p. 190.

contract of the acceptor really is, no words written above the signature of the acceptor can be rejected. [Bramwell, B.-If a four months bill is drawn it is clearly a dishonour of the bill to accept it as a three months bill.]

POLLOCK, C. B.-The words " No. 1756. Due 11 Decr. 1856," appear to be the mere memorandum of the clerk, who prepared the bill for the acceptor's signature, as to the time at which it would become payable. The bill purports to be accepted according to its tenor; then there is something which is said to be inconsistent with that. The case was before my brother Martin, who had the powers of a jury, and I think that he was right in deciding that the bill was accepted according to its tenor. There will, therefore, be no rule.

BRAMWELL, B.-I am of the same opinion. The question is, what is the meaning of the acceptance. After the words "accepted, payable at Messrs. Overend, Gurney & Co., bankers, London," the words "No. 1756. Due 11 Decr. 1856" occur. Does that mean accepted to be due on the 11th of December? I think that the number refers to the number of the bill in the book of the drawee, and if this is a matter of law I have no difficulty in deciding that the time of payment mentioned is not a qualification of the acceptance, but simply an untrue description of the bill.

CHANNELL, B.-I also think that there should be no rule. The matter was left to the judge, who had to decide the question, whether it was one of law or fact. Mr. Hill must make out that the words formed part of the acceptance. The bill seems to have been prepared for signature by a clerk. If the question is one of law I think that the accept

1857.

FANSHAWE

v.

PEET.

1857.

FANSHAWE

v.

PEET.

EXCHEQUER REPORTS.

ance terminates at the third line; if it is a question of fact I should attach importance to the number, as shewing that the date was not a qualification of the acceptance, but a mere memorandum.

MARTIN, B.-At the trial, after consulting my brother Crompton, I thought that if a drawee intends to qualify his acceptance he must do so in unambiguous language. Here it cannot be doubted but that if the bill had been presented to the acceptor at the end of three months he would have refused payment.

Rule refused.

April 20.

SCHNEIDER and Another v. FOSTER and Others.

The defendant DECLARATION, dated November 4, 1856, for goods

bought goods upon the following terms

of payment:"Four months

bill on the 10th

of the month following delivery, or 20%

for cash." After the delivery of the goods he paid

part of the price in cash.

Held, that he had exercised his option of paying ready money, and therefore that the plaintiff might sue him for goods sold without waiting for the expira

tion of the four months.

sold and delivered. Plea:-never indebted.

At the trial before Crowder, J., at the last assizes for the County of Stafford, it appeared that the action was brought to recover the balance due from the defendants under the following contract :-" Sold to Messrs. The Chillington Iron Co. (the defendants) Two thousand lots of our best Blast Furnace Iron Ore at 23s. per lot of lbs. 2400 delivered at their siding at the London and North Western line of Rail

way. Terms of payment four month's bill on the 10th of the months following delivery, or 2% for cash.

Schneider, Hannay and Co." The deliveries of ore were in March to the value of

4851. 10s. ; in April, 3491. 5s. 11d. ; in May, 1107. 14s. 1d.;

in June, 552l. 2s. Od.; in July, 4017. 13s. 7d., making

together 18997. 5s. 7d. If a bill had been given for the 4017. 13s. 7d. for iron supplied in July it would not have been due till December, 1856. The defendants had paid

EASTER TERM, 20 VICT.

9007. on the 27th of June, and 8927. 16s. 1d. on the 29th of August, making together 17927. 16s. 1d. At the close of the plaintiffs' case the defendants' counsel submitted that the plaintiffs must be nonsuited, on the grounds that the action was brought too soon, and that the declaration should have been on the special contract. The learned Judge thought that the defendants had exercised the option of paying in cash, and the jury under his direction found a verdict for the plaintiffs.

Pigott now moved to set aside the verdict and for a new trial.—The plaintiffs had no right to sue for goods sold and delivered until after four months had elapsed; Miller v. Shawe (a). The defendants never elected to pay cash, except to the extent of the payment actually made by them. [Martin, B.-The defendants had an option to pay by bill or in cash; they had no right to pay partly by bill and partly in cash. They have put it out of their power to give a bill for the whole amount. Pollock, C. B.—The defendants paid part of the sum of 4017. 13s. 7d. for goods supplied in July in cash; that shews that they considered it as payable presently.]

Rule refused.

1857.

SCHNEIDER

v.

FOSTER.

(a) 4 East, 149.