1 BILL OF EXCHANGE-ACCEPTOR LIABLE THOUGH NO CONSIDERATION. If a party becomes a bona fide holder for value of a bill before its acceptance, it is not essential to his right to enforce it against a subsequent acceptor that an additional consideration should proceed from him to the drawee. 2. SAME-BONA FIDE HOLDER.

Where, owing to the lack of facilities of exchange between two places, an agent who has made a collection remits the amount to his principal in his own draft on a third party, and the same is accepted by the third party, the principal becomes a bona fide holder for value of the draft, and may recover against such third party, although he was induced to accept the bill through false representations of the drawer.

F. R. Condert, for appellants, Max Heurtematte and others.

C. E. Coddington, for respondent, Francis Morris.

RUGER, C. J. In the discussion of this case it is unnecessary to consider particularly the agency of Hourquet & Poylo in the transaction, as they acted solely as the gratuitous agents of the plaintiffs, and had no interest in the subject of the business. It may therefore be treated as a transaction occurring directly between the plaintiffs and Rau Runnels, and, concisely described, was to the following effect: The plaintiff's were merchants doing business at Panama, and one Christofel was a customer and debtor of theirs, residing at San Juan del Sur, near Rivas, in the state of Nicaragua. Christofel was desirous of discharging his obligations to the plaintiffs, but was embarrassed in doing so by the infrequency of communication between Rivas and Panama, and the want of a system of exchange enabling him to transmit funds safely and expeditiously from one place to the other. Under these circumstances,

1 Reversing 28 Hun, 77.

V.4N.E.,no.1-1

the plaintiffs consulted Hourquet & Poylo, a business firm at Panama, as to the best manner of collecting the debt. The plaintiffs were informed by Hourquet & Poylo that Rau Runnels was a correspondent of theirs residing at Rivas, and that the collection could probably be made through him, and offered to transmit a draft on Christofel to Runnels for that purpose. Thereupon the plaintiffs made their draft on Christofel at 60 days for $1,000, payable to Hourquet & Poylo, who indorsed the same to Runnels, and forwarded it to him at Rivas for collection. In due time it was received by Runnels, and at its maturity was paid to him in Colombian currency.

It becomes important now to determine the legal obligations and duties of the paries towards each other at this stage of the transaction. In the collection of the draft, Runnels acted as the mere agent of the plaintiffs, and had no interest in the proceeds, except, perhaps, a lien thereon for the value of his services in making the collection. He had no right or authority to use such funds for his individual purposes, and his sole duty in relation to them was that of their transmission to his principals. The nature of the business impliedly authorized him to make such transmission according to the usages in trade, and, in the absence of such usages, to do so by some other method which should, in the exercise of reasonable care and prudence, promise to accomplish the object intended. It was therefore open to him to transmit the funds received in specie as they were collected; or he could have purchased a bill of exchange, if opportunity served, at that place, and transmitted that; or he could remit them in any other way deemed most safe, convenient, and desirable to him, subject to the approval by his principals of the method adopted. It does not appear in the case but that Runnels was a merchant or banker, and accustomed to sell exchange upon foreign places. However that may be, he in fact sent to the plaintiffs, February 4, 1879, immediately upon collection, the proceeds thereof, less cost of collection and exchange on the draft in suit. This was his own draft upon the defendant, Morris, at New York, at 90 days' sight. Upon the receipt of this draft by the plaintiffs, it was accepted by them, and remitted to New York for presentation to and acceptance by the drawee, and the same was accepted by him February 26, 1879.

The sole question in the case is whether the plaintiffs were bona fide holders for value of the draft. We cannot doubt but that they were. If, on receiving the funds in question, Runnels had purchased with them a bill of exchange or draft from a merchant or banker, according to the usages of trade, and transmitted the same to the plaintiffs, no question could arise but that he acted as their agent in the transaction, and they would have been bona fide holders of such paper within all definitions of that character; and we are unable to see the difference in principle between such a case and the transaction in question. The funds collected by Runnels were, until they consented to their appropriation by him, at all times the property of the plaintiffs. Runnels' sole duty in relation to them was that of transmission to the plaintiffs, and until that duty was legally performed he held them in a fiduciary capacity for a specified pur

pose. His duty of transmission could not be performed by remitting his own obligation, payable at a future day, except by the consent and approval of the plaintiffs. Until this consent and approval were given, the funds remained the property of the plaintiffs, and any use of them by Runnels before that time would have constituted a violation of his duty to his principals, which it cannot be presumed he committed.

Doubtless the lack of adequate facilities of exchange between Rivas and Panama induced Runnels to offer, and the plaintiffs to accept, the mode of remittance adopted; and it was entirely competent for Runnels to propose, and for the plaintiffs to accept, such a solution of the inconveniences of the situation; but no title to the funds collected passed to Runnels until the acceptance of the draft by the plaintiffs. After that, and not till then, he was entitled to use those funds as his own. By the original employment the plaintiffs contemplated no credit to Runnels, and he had no right to, and it does not appear that he even supposed he acquired any right to, use the funds in question for his own purposes, or that he ever did so use them. The conventional relation of debtor and creditor never existed between Runnels and the plaintiffs until the acceptance of his draft upon Morris, and then those relations were governed by the liabilities existing by force of the draft alone. In accordance with the rule which precludes a court from presuming a violation of duty by an individual, we must assume that Runnels performed his duty, and his whole duty, to the plaintiffs as their agent. This required him to safely keep their funds until he had transmitted them according to the usage of trade, or in some other mode approved by them. The legal effect of the method adopted was to transfer the title to the funds collected to Runnels simultaneously with the acceptance by the plaintiffs of Runnels' draft upon Morris, and was the precise equivalent of the payment of so much money in the immediate purchase of a draft or bill of exchange by one person from another. We are therefore of the opinion that the plaintiffs were the bona fide holders for value of the draft in suit, and are entitled to recover thereon.

The general term conceded that the plaintiffs were bona fide holders, for value, of the bill before acceptance, but deny them that character after acceptance, as against the acceptor. We think the concession is fatal to the conclusion reached by that court. It is said that the Farmers' & Mechanics' Bank v. Empire Stone Dressing Co., 5 Bosw. 290, is authority for the position. It is true that some expressions of the learned judge writing in that case may justify the citation, yet it should be considered that those remarks were unnecessary to the decision of the case; and the same court have twice since then refused to follow it. We conceive the rule there laid down finds no support in the doctrines of the text writers or the reported cases. Philbrick v. Dallett, 2 Jones & S. 370; First Nat. Bank of Portland v. Schuyler, 7 Jones & S. 440; Pars. Bills & Notes, 323; Daniels, § 534; Edw. Bills, (2d Ed.) 410.

If a party becomes a bona fide holder for value of a bill before its acceptance, it is not essential to his right to enforce it against a subsequent acceptor that an additional consideration should proceed from him to the

drawee. The bill itself implies a representation by the drawer that the drawee is already in receipt of funds to pay, and his contract is that the drawee shall accept and pay according to the terms of the draft. 1 Pars. Bills & Notes, 323, 544; Arpin v. Chapin, (Mass.) 3 N. E. Rep. 25. The drawee can of course, upon presentment, refuse to accept a bill, and in that event the only recourse of the holder is against the prior parties thereto; but in case the drawee does accept such a bill, he becomes primarily liable for its payment, not only to its indorsers, but also to the drawer himself. The delivery of a bill or check by one person to another, for value, implies a representation on the part of the drawer that the drawee is in funds for its payment, and his subsequent acceptance of such check or bill constitutes an admission of the truth of the representation which he is not allowed to retract. Daniels, Neg. Inst. 534; Pars. Bills & Notes, 323, 544, 545. By such acceptance the drawer admits the truth of the representation, and having obtained a suspension of the holder's remedies against the drawer, and an extension of credit by his admission, is not afterwards at liberty to controvert the fact as against a bona fide holder for value of the bill. The payment to the drawer of the purchase price furnishes a good consideration for the acceptance which he then undertakes shall be made, and its subsequent performance by the drawee is only the fulfillment of the contract which the drawer impliedly represents that he is authorized by the drawee to make. The rule that it is not competent for an acceptor to allege as a defense to an action on a bill that it was done without consideration, or for accommodation, as against a bona fide holder for value of such paper, flows logically from the conclusive force given to his admission of funds, and is elementary. Daniels, Neg. Inst. §§ 532-534; Edw. Bills, 410; Harger v. Worrall, 69 N. Y. 371; Commercial Bank of Lake Erie v. Norton, 1 Hill, 501; Robinson v. Reynolds, 2 Q. B. 211; Hoffman v. Bank of Milwaukee, 12 Wall. 181. Of course, the cases determined upon the ground that the holder of such paper received it to apply upon an antecedent debt, or that it had been unlawfully diverted from the purpose for which it was designed, have no application to the circumstances of this case. The judgments of the courts below must therefore be reversed, and new trial ordered, with costs to abide the result.

(All concur, except MILLER, J., absent.)

(101 N. Y. 45)

SCHENECTADY STOVE Co. v. HOLBROOK and others.1

Filed December 22, 1885.

1. SALE-MEETING OF MINDS.

So long as there remains any of the material conditions of a contract to be settled and agreed upon, no binding agreement exists, and where the buyers, on an offer to sell at price given in price-list, specify that the goods must be put up in certain sized bundles, and shipped at particular times, the vendor may decline to fill the order in that manner.

Affirming 30 Hun, 86, mem.

2. SAME-PRICE-LIST.

A price-list is a mere proposition, which may be withdrawn at pleasure, unless accepted on the terms offered before such withdrawal.

3. SAME-DISPUTE AS TO TERMS.

So long as there is a dispute going on between the parties as to the terms of a sale there is no meeting of minds.

4. SAME-POSTPONEMENT of Payment.

Upon an offer of immediate sale, the buyer cannot extend the time of payment by postponing the time of delivery without the vendor's consent.

This is an action for a balance remaining due of the purchase price of a quantity of hollow-ware manufactured for and delivered to defendants by plaintiff in the latter part of 1879. The claim was not denied, but a counter-claim was set up for failure to perform an alleged contract for the delivery of a further quantity of hollow-ware. The contract was contained in a series of letters. On September 22d defendants ordered the goods in suit, saying nothing about price, but it appears that the price at which the goods were ordered was a price stated orally by Clute, an agent of plaintiff, on twenty-second of September, and about which there. is a dispute, each party claiming a different arrangement as to discount for cash or note. On the 27th a further order was sent by defendants, stating their understanding of the price plaintiff's agent had mentioned, and ordering the goods to be put up in bundles, and shipped in several shipments. On the 29th the order was returned, with statement that it was beyond plaintiff's power to accept it. As a further statement of plaintiff's view of the dispute as to price of the former order, October 1st plaintiff says: "Independently of prices, we cannot take orders beyond our capacity; hence yours of the twenty-seventh ult. is returned." On December 27th defendants notified plaintiff that they would buy hollow-ware to fill order sent 27th and returned 29th. A verdict was rendered for plaintiff, and the judgment was affirmed in general term. Jesse Johnson, for appellants, Charles Holbrook and others. Elihu Root, for respondent, Schenectady Stove Co.

RUGER, C. J. It is quite obvious that no contract was ever made between the parties with respect to the sale of the goods described in the order of September 27th. Their minds never met as to some of the elements necessary to constitute a valid contract. The catalogue of prices containing a statement of terms of sale delivered to defendants by plaintiff in August contained no proposition as to the amount of goods which the plaintiff was willing to sell on the terms stated; and until an offer is made by one party, complete and definite in all material terms, it is not possible for another to make a valid contract by the mere acceptance of a proposition. In other words, so long as there remains any of the material conditions of a contract to be settled and agreed upon, no binding agreement exists. In both of the orders in question, certain stipulations were imposed by the buyers outside of terms and prices, which required an assent on the part of the vendor to make a valid executory contract of sale. Thus the vendees required the goods to be put up in a particular manner, in bundles of uniform size, with only a certain num