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Pitts vs. Jones.-Opinion of Court.

modation drawer for the drawee or payee, or any subsequent endorser, then, in every such case he is entitled to strict notice of the dishonor. The distinction between the cases may seem at first view to be somewhat artificial and not altogether satisfactory. But it is founded on this consideration, that in the latter case the drawer draws the bill in good faith and has reasonable grounds to believe that it will be honored, and therefore he may well insist upon a punctual discharge of duty on the part of the holder, whereas in the former cases it is his own fraud or folly to draw a bill which he has no reasonable ground to expect to be honored, and therefore he may well impute the injury, if any, to himself, to his own laches and to his having misled the holder."

Mr. Chitty in his treatise on Bills (8th edition, 356) says: "But if the drawer of a bill, from the time of making it to the time when it was due and presented for acceptance, had no effects in the hands of the drawer or acceptor, and had no right on any other ground to expect that the bill would be accepted, and the bill was drawn for the accommodation of such drawer, he is prima facie not entitled to notice of the dishonor;" and again at page 359: "Nor is actual value in the hands of the drawee at the time of drawing essentially necessary to entitle the drawer to notice of dishonor of the bill, for circumstances may exist which would give a drawer good ground to consider he had a right to draw a bill upon his correspondent."

In the case of Bickerdike vs. Bollman, 1 T. R., 405, it was held that notice was not necessary where the drawer has no effects in the hands of the drawee, Ashurst, Justice, remarking, “for it is a fraud in itself, and if that can be proved the notice may be dispensed with;" and Buller, Justice, remarking that "the law requires notice to be given for this reason, because it is presumed that the bill is drawn on account of drawees having effects of the drawer in his

Pitts vs. Jones.-Opinion of Court.

hands, and if the latter has notice that the bill is not accepted or not paid, he may withdraw them immediately, but if he has no effects in the other's hands, then he cannot be injured for want of notice." Chief J. Marshall in French's Executrix vs. the Bank of Columbia, 4 Cranch, 141, says that the true construction of the case of Bickerdike vs. Bollman, and those cases which followed it, is, "that a person having a right to draw in consequence of engagements between himself and the drawee, or in consequence of consignments made to the drawee, or from any other cause, ought to be considered as drawing upon funds in the hands of the drawee, and therefore not coming within the exception to the rule." Mr. Smith in his Leading Cases, vol. 2, 44, reviewing the case of Bickerdike vs. Bollman, cites a great number of authorities, and arrives at the conclusion that "the amount, therefore, of the principle of Bickerdike vs. Bollman, as defined by the American authorities, is, that demand and notice is not necessary where the drawing and delivering the bill is fraudulent." He further says, "The whole principle of exception, then, appears to be, that where the non-acceptance or non-payment of the bill is caused by the fraudulent act of the drawer or endorser, or, in other words, where the drawing or issuing of the bill, or the leaving it to be presented, is a fraud in any party, liable on the bill, such fraudulent party is not entitled to notice; and it is believed that there are no other exceptions to the general rule requiring demand and notice.”

The cases cited upon this point by Greenleaf, Chitty, Story and Smith, are very numerous. It would consume much time and space unnecessarily to notice each of them separately. Upon the whole, we are satisfied we may safely adopt the rule as before quoted from Judge Story in his work on Bills, 311, as the true rule on this subject. That ruling is, that "although the drawer has no funds in the

Pitts vs. Jones.-Opinion of Court.

hands of the drawee, yet, if he has a right to expect to have funds in the hands of the drawee to meet the bill, or if he has a right to expect the bill to be accepted by the drawee in consequence of any agreement or arrangement with him, or if upon taking up the bill he would be entitled to sue the drawee or any other party on the bill," "then, in every such case he is entitled to strict notice of the dishonor."

Having adopted this as the correct ruling, we shall have little difficulty in applying it to the case before us. If we ask the question whether the drawer in this case did not have a right to expect the bill to be accepted and paid by the drawee in consequence of an arrangement or agreement with him, or if upon taking up the bill he would have been entitled to sue the drawee, we can have no hesitancy in answering affirmatively. The evidence shows he purchased the saw logs for which the draft was given only as the agent of E. A. Pearce & Son, and had in his own right no interest in the matter. His agency alone would have authorized him to draw upon E. A. Pearce & Son to pay for the logs purchased for them, and in addition to that, there is express evidence that he was authorized to draw upon them. If notice had been given him of the non-acceptance and he compelled to pay the draft, he, of course, would have had a right of action against Pearce & Son for the amount.

It is, indeed, difficult to conceive of any class of persons more strictly entitled to notice than those acting as agents. It is true they may have no funds in the hands of the drawees, their principals, but nevertheless they may suffer quite as much damage from want of notice as if they had.

Where an agent is engaged in purchasing saw logs, cotton, or other produce for his principals, and draws for it, he may be, and doubtless in many cases would be, utterly ruined but for his right to notice of the dishonor of his bill.

Pearce & Son vs. Jordan.-Statement of Case.

Upon receiving notice of such dishonor, he will, of course, cease to purchase; but if he is entitled to no such notice and receives none, he will continue to purchase, perhaps to a very large amount, remitting the product to his principals and drawing upon them therefor, and find out only when too late that his principals have long since failed, and he bound to pay a large number of drafts for which he never received any consideration. And besides, it is the right of the agent to have notice so that he may at once call upon the principal and procure indemnity against the liability fixed upon him by the notice.

Nor is it essential to the right of the agent to notice that the payee of his bill shall have knowledge of his agency. The payee of every draft or bill takes it upon the implied condition that he is not to hold the drawer liable without giving him notice, and if the notice be not given, it is at the peril of the payee.

We are clear that the learned Judge of the Circuit Court erred in refusing the instructions asked for.

Let the judgment be reversed with costs. Per curiam.

E. A. PEARCE & SON, APPELLANTS, VS. A. W. JORDAN, APPELLEE.

1. Where the pleadings are in such a defective condition as to make it manifest that the jury who tried the cause could not have had an intelligent apprehension of the issues to be tried, the judgment will be reversed, and the cause remanded for a new trial.

2. The Supreme Court will not consent to sit as an arbitrator between the parties to a cause brought up by appeal or writ of error.

Pearce & Son vs. Jordan.-Opinion of Court.

Appeal from Santa Rosa Circuit Court.

This case was argued at Marianna and decided at Tallahassee.

C. C. Yonge for appellants.

C. C. Henderson and G. G. McWhorter for appellee.

DUPONT, C. J., delivered the opinion of the court.

This is an appeal from a judgment rendered in the Circuit Court of Santa Rosa county, at the suit of the appellee against the appellants. The action was brought to recover the value of a lot of pine saw logs, alleged to have been sold and delivered by the plaintiff to the defendant. Besides the common counts, the declaration contained a special count on the contract for the cutting and delivery of the logs. To this declaration the defendant pleaded the general issue of non assumpsit, and a special plea setting forth the contract with an averment of damages for the non-performance of the same. There was also a plea of set-off and of payment of a specified sum of money, concluding with a verification. There was a demurrer to the second plea, and also a demurrer to the replication to the third plea. The record shows that at the time that the cause was submitted to the jury, both of these demurrers, remained undisposed of, and that no issue had been joined on the various pleas, with the exception of that of the general issue. It also appears that there were two trials of the case, both of which resulted in favor of the plaintiff. On the first trial, the verdict was for the sum of three hundred and twenty-eight dollars and eighty-eight cents. The verdict was set aside and a new trial awarded on motion of the defendant. The grounds of that motion were as follows, viz: "1st. That the verdict is contrary to evidence. 2d. That it is contrary to the weight

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