I concur in the opinion of WILLARD BARTLETT, J., for the affirmance of the judgment. If the old statutes of this state were still in force they would have no relevancy to this controversy. They applied only to bills of exchange drawn or negotiated in this state and payable elsewhere, not to bills drawn elsewhere payable here. This is necessarily the case, for unless the drawee accepted the draft no action would lie against him in favor of the holder, while if he did accept the draft, on failure to pay, he was liable to a holder only for its face, interest and protest fees and not for re-exchange (2 Sedgwick *Page 104 on Damages [8th ed.], § 700; Bowen v. Stoddard, 10 Metc. 375;Manning v. Cohen, 44 Ala. 343; Byles on Bills [7th ed.], 420;Napier v. Shneider, 12 East, 420; Woolsey v. Crawford, 2 Camp. 445), though his liability might be greater to the drawer of the bill. (Riggs v. Lindsay, 7 Cranch, 500; In re GeneralSouth American Company, L.R. [7 Ch. Div.] 637.) Being practically a bill of exchange drawn on itself, the defendant might be sued either as a drawer or acceptor, though in form the bill had not been accepted. But as acceptor its liability was, under the authorities cited, limited to the face of the bill, which it has since paid. Therefore, if the plaintiff is entitled to recover any greater sum it must be by treating the action as brought against the defendant as drawer. We may assume for the argument that in that view of the case the plaintiff is entitled to recover any damage of whatever character he suffered by the defendant's failure to pay the bill. The plaintiff believes that he has been damaged by the depreciation in the Colombian currency, as a result of which he had to pay the person to whom he sold the bill of exchange $376,344 of the money of that state, while on the sale of the bill he had received only $234,169.60 of the same kind of money. This belief is a pure delusion. Not merely in law but in fact this depreciation was no more an element or factor in the plaintiff's damage than any fluctuation in the price of cotton or sugar that may have occurred in the period elapsing between the sale of the bill by the plaintiff and his taking it up after it was protested as unpaid. A moment's reflection will show this to be the case. When the plaintiff was compelled to take up the bill he either had the money, realized no matter how, or was obliged to borrow it. If when the defendant subsequently paid the draft there had been no change in the value of Colombian money it is plain that he lost nothing (other than interest and exchange), for he could sell the American money and realize on the sale the exact *Page 105 sum he had been compelled to pay in Colombian money. On the other hand, if Colombian money had still further depreciated, it would inure to the plaintiff's advantage, for on the sale of the American money he would be able to repay his debt in Colombian money and have a surplus. But if Colombian money appreciated during this interval the plaintiff would, on the sale of the American money, be unable to realize the amount in Colombian money which he had paid on taking up the bill, and might be considered the loser in Colombian money of the amount of the difference, as occurred in many instances with us when, during the war, men entered into obligations for the payment of money with gold at a premium of over one hundred per cent, which they had to pay when the premium on gold had fallen to a small fraction of that amount. Thus it may be seen how, to a man living and doing business in Colombia, fluctuations in the value of Colombian money during the time a party is in default in the payment of his obligation in American money may cause damage. The price at which the holder of the obligation originally sold it has nothing whatever to do with the existence or amount of such damage. In this case there is no complaint of any loss by appreciation in Colombian money after defendant's failure to pay the draft, the only way in which damage by fluctuations in value could occur. It is doubtful whether such a claim if made could be sustained, as there are decisions to the effect that where default is made in the payment of foreign money, recovery in our money is to be computed on the basis of the relative values of the two currencies at the time of default. (Bissell v.Heywood, 96 U.S. 580, 587; Comstock v. Smith, 20 Mich. 338;Sheehan v. Dalrymple, 19 Mich. 239.)
GRAY, HAIGHT, WERNER, CHASE and COLLIN, JJ., concur with WILLARD BARTLETT, J., and CULLEN, Ch. J.
Order affirmed. *Page 106