87

Prior to the enactment of the statute oral acceptances were often held good, but this was doubtless opposed to the best mercantile understanding, and, except as provided by Section 137, has been wisely changed by the statute." A written admission that the drawee is indebted in an amount equal to the face of a bill drawn on him, is not an acceptance.89

Section 133.-[HOLDER ENTITLED TO ACCEPTANCE ON FACE OF BILL.] The holder of a bill presenting the same for acceptance may require that the acceptance be written on the bill and, if such request is refused, may treat the bill as dishonored.

Section 134. [ACCEPTANCE BY SEPARATE INSTRUMENT.] Where an acceptance is written on a paper other than the bill itself, it does not bind the acceptor except in favor of a person to whom it is shown and who, on the faith thereof, receives the bill for value.90

Section 135. [PROMISE TO ACCEPT; WHEN EQUIVALENT TO ACCEPTANCE.] An unconditional promise in writing to accept a bill before it is drawn is deemed an actual acceptance in favor of every person who upon the faith thereof, receives the bill for value.91

87 See Scudder v. Union Bank, 91 U. S. 406, 23 L. Ed. 245; Hall v. Cordell. 142 U. S. 116, 35 L. Ed. 956, 12 Sup, Ct. 154; Jarvis v. Wilson, 46 Conn. 90, 33 Am. Rep. 18; Cook v. Baldwin, 120 Mass. 317, 21 Am. Rep. 517.

88 Faircloth-Byrd, etc., Co. v. Adkinson, 167 Ala. 344, 52 So. 419; Rambo v. First State Bank, 88 Kan. 257, 128 Pac. 182; Clayton Town Site Co. v. Clayton Drug Co., 20 N. Mex. 185, 147 Pac. 460; Izzo v. Ludington, 79 N. Y. App. Div. 272, 79 N. Y. S. 744; Frederick v. Spokane Grain Co., 47 Wash. 85, 91 Pac. 570. Cf. Gruenther v. Bank of Monroe, 90 Neb. 280, 133 N. W. 402.

89 Plaza Farmers' Union W. & E. Co. v. Ryan, 78 Wash. 124, 138 Pac. 651. See also Carmichael v. Tishomingo Banking Co., (Mo. App. 1917), 191 S. W. 1043.

90 See Jones v. Clumpler, 119 Va. 143, 89 S. E. 232.

91 A promise by telegraph is in writing within the meaning of the statute. Oil Well Supply Co. v. MacMurphey, 119 Minn. 500, 138 N. W. 784. Even though the sender telephoned the message to the operator. Selma Sav. Bank v. Webster County Bank (Ky.), 206 S. W. 870. See also the following cases where the writing was held to amount to an acceptance. North Atchison Bank v. Garretson, 51 Fed. 168; First Nat. Bank v. First Nat. Bank, 210 Fed. 542; Lehnhard v. Sidway, 160 Mo. App. 83, 141 S. W. 430; State Bank v. Bradstreet, 89 Neb. 186, 130 N. W. 1038, 38 L. R. A. (N. S.) 747; Johnson v. Clark, 39 N. Y. 216; First Nat. Bank v. Muskogee Pipe Line Co., 40 Okla. 603, 139 Pac. 1136, L. R. A. 1916 B. 1021. Cf. Soppe v. Mecha

Section 136. [TIME ALLOWED DRAWEE TO ACCEPT.] The drawee is allowed twenty-four hours after presentment, in which to decide whether or not he will accept the bill; but the acceptance if given, dates as of the day of presentation.

Section 137. [LIABILITY OF DRAWEE RETAINING OR DESTROYING BILL.] Where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill accepted or non-accepted to the holder, he will be deemed to have accepted the same.92

The language of this section if taken literally seems open to objection. Aside from the inartistic terminology involved in calling what is really conversion an acceptance, it seems to follow that if such conversion is deemed an acceptance notice of dishonor need not be given to the drawer or indorser, an unfortunate result. Furthermore it is doubtful whether the words "within such other period" are intended to mean "within such longer period." Presumably they are so intended, but they do not say so. Accidental destruction is not within the scope of the section.93 Retention without more was held not to amount to an acceptance within the meaning of previous statutes from which this was taken; 94 but under the Negotiable Instruments Law it has been held that such retention does amount to an acceptance.95

ley (Neb.), 172 N. W. 35; Bank of Morganton v. Hay, 143 N. C. 326, 55 S. E. 811; Colcord v. Banco de Tamaulipas, 181 N. Y. App. D. 295, 168 N. Y. S. 710, where the writing did not amount to an acceptance. This section is held applicable to checks. Selma Sav. Bank v. Webster County Sav. Bank (Ky.), 206 S. W. 870.

92 This section is omitted in Illinois and South Dakota. In Pennsylvania and Wisconsin it is provided that mere retention is not an acceptance.

93 Bailey v. Southwestern Co., 12ỏ Ark. 257, 190 S. W. 430, 207 S. W. 34.

94 See St. Louis &c. Ry. Co. v. James, 78 Ark. 490, 95 S. W. 804; Dickinson v. Marsh, 57 Mo. App. 566; Matteson v. Moulton, 79 N. Y. 627.

95 State Bank v. Weiss, 46 N. Y. Misc. 93, 91 N. Y. S. 276; Wisner v. First Nat. Bank, 220 Pa. 21, 68 Atl. 955, 17 L. R. A. (N. S.) 1266 (changed by statute in Pennsylvania; see Union Nat. Bank v. Franklin Nat. Bank, 249 Pa. 375, 94 Atl. 1085); People's Nat. Bank v. Swift, 134 Tenn. 175, 183 S. W. 725. See also Standard Trust Co. v. Commercial Nat. Bank, 166 N. C. 112, 81 S. E. 1074.

Section 138. [ACCEPTANCE OF INCOMPLETE BILL.] A bill may be accepted before it has been signed by the drawer, or while otherwise incomplete, or when it is overdue, or after it has been dishonored by a previous refusal to accept, or by non-payment. But when a bill payable after sight is dishonored by non-acceptance and the drawee subsequently accepts it, the holder in the absence of any different agreement, is entitled to have the bill accepted as of the date of the first presentment.

§ 1196. General and qualified acceptances.

Section 139. [KINDS OF ACCEPTANCES.] An acceptance is either general or qualified. A general acceptance assents without qualification to the order of the drawer. A qualified acceptance in express terms varies the effect of the bill as drawn.

Section 140. [WHAT CONSTITUTES A GENERAL ACCEPTANCE.] An acceptance to pay at a particular place is a general acceptance, unless it expressly states that the bill is to be paid there only and not elsewhere.

Section 141. [QUALIFIED ACCEPTANCE.] An acceptance is qualified, which is:

(1) Conditional, that is to say, which makes payment by the acceptor dependent on the fulfillment of a condition therein stated;

(2) Partial, that is to say, an acceptance to pay part only of the amount for which the bill is drawn;

(3) Local, that is to say, an acceptance to pay only at a particular place;

(4) Qualified as to time;

(5) The acceptance of some one or more of the drawees, but not of all.

Section 142. [RIGHTS OF PARTIES AS TO QUALI FIED ACCEPTANCE.] The holder may refuse to take a qualified acceptance, and if he does not obtain an unqualified acceptance, he may treat the bill as dishonored by nonacceptance. Where a qualified acceptance is taken the drawer and indorsers are discharged from liability on the bill, unless they have expressly or impliedly authorized the

holder to take a qualified acceptance, or subsequently assent thereto. When the drawer or an indorser receives notice of a qualified acceptance, he must, within a reasonable time, express his dissent to the holder, or he will be deemed to have assented thereto.96

§ 1197. When presentment for acceptance is necessary.

ARTICLE III

PRESENTMENT FOR ACCEPTANCE

Section 143. [WHEN PRESENTMENT FOR ACCEPTANCE MUST BE MADE.] Presentment for acceptance must be made:

(1) Where the bill is payable after sight, or in any other case, where presentment for acceptance is necessary in order to fix the maturity of the instrument; or

(2) Where the bill expressly stipulates that it shall be presented for acceptance; or

(3) Where the bill is drawn payable elsewhere than at the residence or place of business of the drawee.

In no other case is presentment for acceptance necessary in order to render any party to the bill liable.

Section 144. [WHEN FAILURE TO PRESENT RELEASES DRAWER AND INDORSER.] Except as herein otherwise provided, the holder of a bill which is required by the next preceding section to be presented for acceptance must either present it for acceptance or negotiate it within a reasonable time. If he fails to do so, the drawer and all indorsers are discharged.

§ 1198. How and when presentment for acceptance should be made.

Section 145. [PRESENTMENT; HOW MADE.] Presentment for acceptance must be made by or on behalf of the holder at a reasonable hour, on a business day and before

See Lewis, Hubbard & Co. v. Morton, 80 W. Va. 137, 92 S. E. 252.

the bill is overdue, to the drawee or some person authorized to accept or refuse acceptance on his behalf; and:

(1) Where a bill is addressed to two or more drawees who are not partners, presentment must be made to them all, unless one has authority to accept or refuse acceptance for all, in which case presentment may be made to him only.

(2) Where the drawee is dead, presentment may be made to his personal representative;

(3) Where the drawee has been adjudged a bankrupt or an insolvent or has made an assignment for the benefit of creditors, presentment may be made to him or to his trustee or assignee.

Section 146. [ON WHAT DAYS PRESENTMENT MAY BE MADE.] A bill may be presented for acceptance on any day on which negotiable instruments may be presented for payment under the provisions of sections seventy-two and eighty-five of this act. When Saturday is not otherwise a holiday, presentment for acceptance may be made before twelve o'clock, noon, on that day.97

Section 147. [PRESENTMENT WHERE TIME IS INSUFFICIENT.] Where the holder of a bill drawn payable elsewhere than at the place of business or the residence of the drawee has not time with the exercise of reasonable diligence to present the bill for acceptance before presenting it for payment on the day that it falls due, the delay caused by presenting the bill for acceptance before presenting it for payment is excused and does not discharge the drawers and indorsers.

1199. Dishonor by non-acceptance and its effect.

Section 148. [WHERE PRESENTMENT IS EXCUSED.] Presentment for acceptance is excused and a bill may be treated as dishonored by non-acceptance, in either of the following cases:

(1) Where the drawee is dead, or has absconded, or is a fictitious person or a person not having capacity to contract by bill.

"The last sentence is omitted in Kentucky and Wisconsin.