1818. MASON against BARFT defendant meant to charge himself in that character ? Brankston had been in the habit of drawing upon these defendants, and Mowbray and Co. had been in the habit of transmitting the bills so drawn by Brankston, to the defendants, for their acceptance; and the defendants, in a former letter enclosing an accepted bill which had been sent to them by Mowbray and Co., had used these words: "In discounting Mr. Brankston any bills he may in future draw upon us it may be well to inquire of him, if he has delivered the wool he values for, and sent the carrier's receipt to us; in this case the draft is sure of being accepted without delay," That letter clearly intimated to Mowbray and Co. that the defendants did not intend to accept Brankston's bills at all events, but only when they were sure that the wool was delivered to the carrier, and in a train to reach them. In the ordinary course of business the holder of a bill leaves it for acceptance and calls for it again; but here the bill was transmitted to the drawees by letter. And Mowbray and Co. had no right to throw on the defendants the obligation of answering every letter they might think fit to write; because it' they chose (instead of employing an agent) to deal with the drawees by letter, they constituted them their agents. Then the double. character of drawee and agent are united in the same persons; and express notice is given by them standing in that double character, "that they will accept, provided the goods are delivered, and the carrier's receipt sent." Under these circumstances on the 25th of February, Mowbray and Co. enclosed a 2007. bill of Brankston's which they desire the defendants to accept and return to them. Now all that they had any right to expect was, that the : the defendants would accept such bill without delay, (that is by return of post, which would be on the 2d March) provided the goods had been delivered, and the carrier's receipt sent. But the 2d of March having come, and the bill not being then returned accepted, they ought to have presumed that there was some reason for it; such as the non-arrival of the carrier's receipt, for the arrival of which the defendants were waiting after an interval of nine days, however, the plaintiffs send for acceptance another bill in a letter, which does not contain any remonstrance on account of the former bill not having been returned; that letter is also received, and on the 11th March, the plaintiffs received from the defendants a letter, in which they state in distinct terms, that they had not received the carrier's receipt, and that they could not therefore accept the bill. It is true that they had been keeping the bill at the instance of Brankston, but it was so kept with a view also to the interest of Mowbray and Co., for the defendants expected the invoice shortly, and therefore it was their duty in their character of agents to retain the bill; for if they had transmitted it unaccepted, they would have incurred the useless trouble and expence of again writing to Mowbray and Co. It appears therefore that on the 11th March, Mowbray and Co. were apprized that the first bill was not accepted, and that the defendants did not mean to accept it until they received the invoice. If Mowbray and Co. however, had then meant to consider the detention of the bill as an acceptance, why did they not. then say so? they were bound in honesty so to do, for if the defendants had made themselves liable as acceptors they would have been entitled, and ought to 1818. MASON against BARFY. 1818. MASON against BARFF. have had the opportunity to avail themselves of any funds in their hands belonging to Brankston, and might thereby have indemnified themselves against the liability which it is contended they had incurred as acceptors of the bill. Upon the whole it seems to me, that the silence of Mowbray and Co. from the 11th to the 27th March, was an assent on their part, that they would not consider the detention of the bill under the circumstances as an acceptance: and I am therefore of opinion, that the defendants are not liable as acceptors of the first bill: as to the other bill, the daim upon that was very properly abandoned by the plaintiff's counsel. ABBOTT J. I am also of opinion that the plaintiffs in this case are not entitled to recover. It has been said that if the drawee detains a bill left with him for acceptance, for an unreasonable time, that such detention amounts in point of law, to an acceptance; and the opinions of some great and learned persons, entitled undoubtedly to the highest respect, have been cited in support of that doctrine. It is not however supported by the authority of any decided case; for the cases which have been referred to in the course of the argument have all been decided upon very special circumstances. Supposing however such a rule as that contended for to exist, it will be necessary in every case to inquire, whether the detention of the bill has been for more than a reasonable time, and the question of reasonable time will necessarily depend upon the facts of each particular case and the conduct of the parties. Now the facts in this case are shortly these: Brankston had been in the habit of selling wool to the defendants, and they of ac cepting cepting his drafts for the amount; this Mowbray and Co. knew, and they knew also that the defendants would not accept such drafts until they received the carrier's voucher for the delivery of the wool to him. This was known to them in August; and at a subsequent period the first of these bills was sent. It is true that Brankston said that the carrier's receipt had been transmitted, but the reasonable conclusion is, that he had not transmitted it. Then how do Mowbray and Co. act? The defendants having received the first bill on the 27th February write on the 8th March, stating that they had not accepted it, and assigning their reason, and they then offer to return it if Mowbray and Co. should so require. Upon the receipt of this Mowbray and Co. do nothing; they neither say that they considered the defendants as having accepted the bill, nor do they desire to have it returned. By their silence then on that occasion they appear to me to have given judgment against themselves, for it very plainly shews that they did not then think the defendants answerable, but conceived that they had kept the first bill that length of time to ascertain whether Brankston would or would not send the goods. It was his duty, having taken the liberty to draw the bill, 10 forward the carrier's receipt, and that receipt not having arrived, the defendants cannot be said to have detained the bill an unreasonable length of time. For these reasons, even if the rule were as contended for by the plaintiffs' counsel (which I by no means admit), still there is a contract between the parties themselves as to this particular case, and therefore uuder these circumstances I think that the defendants were not liable as acceptors of this bill. 1818. MASON against BARFF. 1818. MASON against BARFY. HOLROYD J. I am also of opinion that the plaintiffs are not entitled to recover. It appears to me that a mere non-feazance, that is, an omission to send back a bill which has been left for acceptance, does not of itself amount to an acceptance. Whether a refusal to deliver upon application a bill which has been left for acceptance will amount to an acceptance is another question; that would be more than a non-feazance, for it would be a tortious conversion of the bill. It is unnecessary however to decide that question; the present being a mere non-feazance: and except for the prior usage between these parties, there would have been no obligation whatever upon the defendants to return the bill sent to them, for Mowbray and Co. had no right to put the defendants to any trouble whatever. Now what is the effect of the usage as explained by the written correspondence? The utmost extent to which it goes is, that the defendants were to return the bills accepted, provided they received the carrier's receipt; that was their consideration for their accepting; and unless they received the carrier's voucher, there was no legal obligation on them to accept. Supposing however that it was competent to Mowbray and Co. to treat this as an acceptance or not as they thought fit, the question is, what have they done? Upon the first bill's not being returned, if they had then intended to consider the detention as an acceptance, why did they not say so? instead of that, they appear to me to have treated it as no acceptance, and they cannot then afterwards turn round and say they considered it as an acceptance. It appears to me therefore that, under the circumstances, Mowbray and Co. have treated this bill as if it were not accepted, and that the plaintiffs cannot now insist that the defendants are liable. Judgment for Defendant. |