[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 461
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 462 There is no ground for the reversal of the judgment in this case.
The allegations of the plaintiff, in his complaint, show that he construed and claimed the order of J.A. Borst, on the defendant, to be a bill of exchange. After setting it forth,verbatim, he alleges that it was sold, transferred and delivered to D.L. Noyes for value; and that he, immediately thereafter, presented it to the defendant, who accepted the same in writing, on condition that said Borst continued in the employment of the defendant, and, it is then averred, that he did so continue till the commencement of this action. Assuming that construction of the order to be correct, it is clear that the referee correctly decided that the plaintiff could not recover. There was no acceptance of it shown after it was drawn, and the letter of the defendant's president, previously delivered to the brother of J.A. Borst, was subject to two conditions: one that J.A. Borst should continue in its employment; and the other, that the order should remain unrevoked. It could, consequently, not be deemed an actual acceptance within the provisions of the Revised Statutes, which require it to be unconditional. (See 1 R.S., 768, § 8.)
It is now, however, insisted on behalf of the plaintiff, that *Page 464 "the order and letter being given to Noyes for a valuable consideration, by J.A. Borst, operated as an equitable assignment of a portion of Borst's salary; and, the defendant, having notice of said assignment, was bound to pay, accordingly, without any written acceptance, provided Borst continued in its employment." Such a construction cannot be given to the transaction. The order does not, in terms, direct the payment of the salary or wages or any part thereof to Noyes. It is a request, or at most a direction, by Borst, to pay certain specified sums of money, generally, for a certain period and on particular days, without the designation therein of any claim for a debt due or to become due to him, unless it is contained in the further direction to charge the amounts paid to his salary account. This, it is true, recognizes the fact that there was a relation between the parties at the time which entitled Borst to a credit for services rendered by him, and for which a salary was payable, but the direction would have been as proper if the sums thus to be charged were for moneys lent and advanced previous to the earning of the salary, as for a salary actually earned, and for which an indebtedness had accrued. It was not a requirement that the payment should be made out of a designated fund, or from a particular source, but it was a provision made for the reimbursement of what should be paid in compliance with the request or direction. (See Kelley v. The Mayor of Brooklyn, 4 Hill, 264.)
The letter does not give any color to such a construction or claim. It is a short and clear expression of what the defendant was willing to do, as an accommodation to Borst, its employe. It is fairly to be inferred, from what is stated therein, that he wished to obtain or realize funds before he could obtain them from his salary, and that such desire was made known to the defendant. While there was a willingness on its part to accord to his wishes as far as it could with entire safety, it, by the terms of the letter, carefully avoided an absolute promise or undertaking on its part, to pay the amounts requested to the party named in the order, even if *Page 465 the employment should continue and a salary or compensation should become payable therefor, and inserted, as a condition of its agreement to make the payment, that the order remainedunrevoked. Notice was thereby given to the party who advanced money on the faith of the order, that it was not to be considered an absolute assignment of the sums that should become payable at the end of each month, but that it was taken subject to the right of Borst to revoke it. There was a clear and unequivocal declaration, on its part, that it only agreed to make the appropriation of the money at the time it should become due, asthe property of Borst, according to his direction as manifested by an order then recognized by him, and it was entirely inconsistent with the theory that his salary should not at all times be subject to his own control and direction. The whole tenor of the letter shows that the defendant did not assume an absolute obligation to pay the moneys referred to in the order to the party receiving it, if the service of Borst should be continued, but qualified the liability assumed or promise given by the reservation of Borst's right to revoke or countermand it, and any and every person taking it took it subject to the exercise of that right.
The question remaining to be considered is, whether there was a revocation of the order by Borst. That is to be determined by the effect of his letter of March 30, 1868, to the treasurer of the defendant, in which he wrote as follows: "Dear Sir: If not accepted, I hereby countermand the order given to D.L. Noyes. Please return to him unpaid." The acceptance there referred to by him, evidently, was intended to apply to one made after the delivery of the order to Noyes. He knew what was contained in the letter of the defendant's president previous to such delivery, and what the effect of it was. When, therefore, he says "if not accepted," he cannot be understood as applying these terms to what had been done before that order by him was given. They, evidently, contemplated a subsequent acceptance, and as it is not claimed that there was such ever made or given, there was no qualification *Page 466 of the revocation, and it must be construed as an absolute countermand of the order. It, therefore, did not "remain unrevoked" when the portions of the salary thereby ordered to be paid became due, and by reason of that fact, the conditional acceptance became inoperative. There was, consequently, no right by Noyes or his assignee (the present plaintiff) to demand the sums sued for by the plaintiff.
It follows that the judgment appealed from must be affirmed, with costs.