The plaintiff, drawee of an order drawn upon one Hyde, the financial agent of the defendants, seeks to recover its amount from the latter as its acceptors by the hand of Hyde. The order was one drawn upon a designated fund. To entitle the plaintiff to recover it was incumbent upon him, therefore, to show (1) that there was or came to be such a fund, and (2) that the order was accepted by the defendants either unconditionally or upon conditions fulfilled.
The fund upon which the order was drawn, as appears *Page 565 on its face, was the last payment due Lifchitz, the drawor, upon a certain building contract which he, as builder, had entered into with the defendants. The court has found that no money was due Lifchitz on the day the order was drawn, and that thereafter, although the building was completed according to the contract before August 1st, 1914, nothing became due to him. This finding negatives the existence at any time of the designated fund, and, unless made erroneously, presents an insurmountable obstacle to the plaintiff's recovery.
Lifchitz contracted to perform the masonry and carpenter work involved in the construction of the building. The terms of the contract, which was in writing, were unusual in that he was to be paid not a fixed sum but a flexible and contingent one, to wit, $1,000 less such amount as the total cost of the building, including both material and labor, should exceed $1,900. The maximum sum which could become due Lifchitz under the contract was, therefore, $1,000. This amount, however, was subject to a reduction by the excess of the material and labor cost over $1,900. The uncontradicted evidence shows that $300 had been paid Lifchitz on account before the order was drawn, that thereafter the defendants paid or became obligated to pay $1,503.14 for material which entered into the construction of the building, and that they were further compelled to pay $386.22 to workmen who were engaged in the completion of the structure and who, employed and unpaid by Lifchitz, filed notices of liens upon it. As the contract provided for no payments in advance of completion, it is manifest that the court was justified in making the finding recited.
If, perchance, this were not so, the plaintiff faces another equally serious obstacle to his recovery in the court's refusal to find an unconditional acceptance by the defendants of the order, either oral or written, or an *Page 566 acceptance which was not conditioned upon there being money due and payable to Lifchitz when the house was completed. The plaintiff excepts to this refusal, and relies, in support of his exception, upon the testimony given by the plaintiff of an unconditional acceptance by parol, and upon a writing admittedly given and claimed to be such acceptance. The parol testimony offered to establish an unconditional acceptance was distinctly denied, and it was quite competent for the court to find, as it did, that there was no such acceptance. The writing relied upon also falls far short of showing an unconditional acceptance. It is only an acknowledgement of receipt of the order containing language descriptive of the thing received. Were it susceptible of a different construction, the testimony before the court as to what was said and done at the time it was made and given was open to the court for its consideration in the determination of its true import, and furnishes ample foundation for the court's conclusion that it did not evidence an acceptance.Cook v. Baldwin, 120 Mass. 317, 319.
"Acceptance," as used in respect to the relations of a drawee to either negotiable or nonnegotiable paper, signifies something more than an acknowledgment of the physical possession of the paper. It imports the assumption of an undertaking. Such an undertaking may be assumed in the customary and conventional form, or in some other form indicative of intent to do so. Here the conventional form of acceptance was not employed, nor was the language even remotely indicative of an engagement to pay the order according to its tenor. Acceptance may, of course, be implied from conduct clearly indicative of an intention to accept, but such conduct is not present here. The only thing which could be pointed out as tending in that direction is the retention of the possession of the order by Hyde. Such *Page 567 retention, however, does not of itself evidence acceptance, and in the present case is much more reasonably explainable upon other grounds. Overman v. HobokenCity Bank, 31 N.J.L. 563, 565; Holbrook v. Payne,151 Mass. 383, 386, 24 N.E. 210; Norton on Bills Notes, 135.
There is no error.
In this opinion the other judges concurred.