Wheatley v. Strobe
Before: Field
Synopsis
Appeal from the Sixth District, County of Sacramento.
This was an action of assumpsit to recover a sum of money. The facts as they appear in the opinion of the Court, are as follows :
As' appears from the record in this case, Strobe ivas indebted to Wheatley, and Wheatley to Howel, and Howel to Wilcoxson & Co. To pay his debt, Wheatley gave Howel an order on Strobe for $236, payable to bearer. This order is not set forth in the record, but is admitted by counsel to be in the following form:
“ Sac. City, July 18,1857.
Mr. Strobe :—Please pay the bearer of these lines two hundred and thirty-six dollars, and charge the same to my account.
E. D. Wheatley.”
On the twenty-fifth of July the order was presented to Strobe, and by him was verbally accepted. No acceptance in writing was made. Soon afterwards Wilcoxson & Co., whose demand against Howel was in judgment, and upon which they had previously issued execution, garnisheed the debt, if any, due by Strobe to Howel, by virtue of this order. . Subsequently Wheatley commenced the present suit against Strobe to recover the original debt. Strobe admitted the original indebtedness, but set up the order, his verbal acceptance, and the garnishment of Wilcoxson & Co., and prayed that Howel and Wilcoxson & Co. might be made parties, and he be allowed to pay the amount into Court. Wilcoxson & Co. filed a petition of intervention, setting up substantially the same facts, with the additional fact that the order was given for a debt due by Wheatley to Howel, and asserting a right to the amount of the debt by virtue of their garnishment, and praying judgment in their favor for the same. The plaintiff demurred to the answer of Strobe ; the demurrer was sustained, and, with the judgment entered thereon, the petition of intervention was denied. Defendant appealed to this Court.
Field, J., after stating the facts, delivered the opinion of the Court —Terry, C. J., and Baldwin, "J., concurring.
Upon the facts in this case the appellants make two points : First. That the verbal acceptance of Strobe was sufficient to render him liable to Howel upon the order of Wheatley; and, Second. If this be untenable, that the order operated as an equitable assignment of the demand against Strobe, which thus became subject to attachment as the property of Howel.
The first of these points cannot be sustained. The order possesses all the requisites of an inland bill of exchange. It contains a direction for the payment of money by one person to another, absolutely and at all events. As no time is specified, it is to be taken as payable at sight. No further particulars than these are. essential to constitute a bill of exchange. The insertion of the word “please” does not alter the character of the instrument. This is the usual term of civility, and does not necessarily imply that a favor is asked. Story on Bills, sec. 33 and notes; 3 Kent, 74.
The order being a bill of exchange, the written acceptance of Strobe was necessary to charge him as acceptor under the statute. His verbal acceptance was insufficient. Act concerning Bills of Echange, sec. 6. Upon the order, therefore, he is not liable.
But the second point is well taken. The order, though not available as a bill of exchange against Strobe for want of acceptance, operated as an equitable assignment of. the demand of Wheatley to Howel. It was given for an antecedent debt, and for the full amount of the demand against Strobe; the consideration was valuable, and there was no splitting of the amount due into distinct and different causes of action; and in such cases it is well settled that an order, whether accepted or not, operates as an assignment of the debt, or fund against which it is drawn.
The want of a written acceptance does not affect the right of Howel to the money due, but only the mode of enforcing it. With the acceptance he could have sustained an action upon the order; without it he [98]' must recover upon the original demand by force of the assignment. Under the old common law practice, the action could only be maintained in the name of the assignor for the benefit of the assignee, but under our system it may be brought in the name of the assignee as the party beneficially interested. Courts of law, equally with Courts of equity, gave effect to assignments, like the one under consideration, by controlling the proceeds of the judgments recovered for the benefit of the assignee. Mandeville v. Welch, 5 Wheat. 227; Corser v. Craig, 1 Wash. C. C. 427 ; Blin v. Prince, 20 Vt. 25 ; Wheeler v. Wheeler, 9 Cowen, 34; Nesmith v. Drum, 8 Seargt., & Watts, 9; Robins v. Bacon, 3 Greenl. 346 ; Adamson v. Robinson, 1 Pick. 461.
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