Franklin Bank v. Lynch

Bartol, C. J., delivered the opinion of the Court. This suit was brought by the appellant against the ap ²⁷⁷ pellee. The facts of the case were admitted, and so far as material may be thus stated. The appellee, living in Westminster, Maryland, sent to Baer & Co., of Baltimore, the following telegram: Westminster, Md., April 27, 1878.

To A. P. Baer & Co., 7 Cheapside, Baltimore: “ You may draw on me for seven hundred dollars.” “Edward Lynch.” The same was received about 2 o’clock p. m. the same day, being Saturday. On the Monday following Baer & Co. drew their draft on the appellee as follows: ($700.) Baltimore, April 29, 1878. “ At sight, pay to the order of ourselves, seven hundred dollars, value received, and charge the same to account of Arthur P. Baer & Co.” To Edward Lynch, Esq., Westminster, Md. On the day of its date, the draft endorsed by Arthur P. Baer & Co., was received by the appellant, and the amount thereof placed to the credit of the drawers, upon the faith of the telegram and the authority thereby given, the same being shown to the appellant. The draft was sent to a Bank in Westminster for collection, and on the 7th day of May, 1878, was presented to the appellee, who refused to pay the same, whereupon it was protested for non-payment. ■ Upon this state of facts, the Circuit Court instructed the jury “ that if they find that the draft was never presented to the defendant for acceptance, and that there was no acceptance of the same by him otherwise than that to be inferred, or implied fr.om the telegram; and that he refused to pay the same when presented to him for that ²⁷⁸ purpose, on the 7th of May, 1878, then the plaintiff is. not entitled to recover under the pleadings in this cause, even though the jury may find the telegram was sent by the defendant and received by Baer & Go., and that- the plaintiff knew of the telegram and received the draft and credited the firm of Baer & Go., with the amount thereof, on the faith of the telegram, and of the authority thereby given by the defendant to said firm.” To the granting of this instruction, and also to the refusal of the prayer offered by the plaintiff, the latter excepted. .The plaintiff’s prayer need not now be particularly noticed, as the questions for our consideration arise upon the Court’s instruction. And,y?reL Was the telegram equivalent to an accept^ anee of the draft, entitling the plaintiff to maintain a suit thereon, as on an accepted hill ?

It was decided by the Supreme Court in Coolidge vs. Payson, 2 Wheaton, 66 , (affirming S. C., 2 Gallison, 233 ,) “ that a letter written within a reasonable time before or after a bill of exchange is drawn, describing it in terms not to be mistaken, and promising to accept, is if shown to one who takes the bill on the credit of the letter, a virtual acceptance binding the person who makes the promise.” That decision was based upon the cases of Pillans & Rose vs. Von Mierop & Hopkins, 3 Burr., 1663; Pierson vs. Dunlop, Cowper, 571, and Mason vs. Hunt, 1 Doug., 296 , decided by Lord Mansfield. ■ It would seem that this is not the law in England at this time, as appears from the opinions of the eminent counsel, Sir Wm. Follett, Sir John Bayley, Sir Frederick Pollock and Mr. M. D. Hill, in 2 Story, C. C. R., 219, 220, and from the case of Bank of Ireland vs. Archer, 11 Mees. & Welsby, 384 m. , But the rule laid down in Coolidge vs. Payson was after-wards re-asserted in Shimmelpenick, et al. vs. Bayard, et al., ²⁷⁹ 1 Peters, 264, 288 , and in Boyce & Henry vs. Edwards, 4 Peters, 111, 121 . It was recognized and approved by this Court in Lewis vs. Kramer & Rahn, 3 Md., 289 , and seems to be well established in this country, by the general current of judicial decisions, many of which are cited in Hare & Wallis’ note to the case of Bank of Ireland vs. Archer, 11 Mees. & Welsby, 390, (Am. Ed.) The rule was laid down in Coolidge vs. Payson with great strictness and precision.

To construe a promise to accept as equivalent to an actual acceptance, it must be one “ describing the bill in terms not to be mistaken.” In Boyce & Henry vs. Edwards, supra, it was said that “ Courts have latterly leaned very much against extending the doctrine of implied acceptances, so as to sustain an action upon the hill,” and in the same-case it was said that “ the rule laid down in Coolidge vs. Payson requires the authority to draw, to point to the specific bill or hills to which it is intended to he applied, in order that the party who takes the bill may not be mistaken in its application ; ” or in the words of Chief Justice Shaw, the authority to draw, or the promise to accept, ought “ specifically to describe or designate the bill, so as to identify it, and distinguish it from all others,” in order to bring it within the American "cases. Carnagie, &c., vs. Morrison, &c., 2 Metcalf, 406. We refer also to Wildes vs. Savage, 1 Story, 22 . Upon the authorities we think it very clear that the telegram of April 27th cannot be deemed and treated as an acceptance of the draft.

The telegram does not point to or designate the draft; only the amount for which Baer & Co. were authorized to draw is mentioned, hut in all other respects the telegram is silent, not specifying on what time the draft is to be drawn. • In Wildes vs.