delivered the opinion of the Court t
This suit was upon a draft drawn by Greer & Way, October 2, 1886, in favor of appellee, upon the defendants, which, it. is alleged, they undertook and promised the plaintiff to accept ' and pay. We shall consider only such points as are material, not observing the order in which they are made. r The principal question is, whether the defendants agreed to accept and pay the draft in suit. That is a question of fact, but upon, its determination depends the propriety of' some of the instructions, and we are therefore at liberty to consider the evidence. The contention of appellants is, that they did not agree with appellee to accept more than one draft, which they did accept and pay, and hence there was no liability upon their non-acceptance of the draft in suit. For this reason, also, they contend that the court erred in not dismissing the suit.
At the request of the drawers of the bill, the defendants, telegraphed to appellee, August 13, 1886, as follows: “We will honor Greer & Way’s draft for cost of cattle and hogs consigned to us.” This language, standing alone, without reference to the facts, might justify the contention of" appellants, and the acceptance of the first draft, on August 23, 1886, might be held a performance of the promise to accept and pay. But when viewed in the light of other facts connected with the transaction, both before and after the sending of the telegram, it must, in our judgment, be given a different construction. Some arrangement had been made—what, is not important,— between the defendants and Greer & Way, by which the latter were to buy and ship cattle and hogs to the former, at the Union Stock Yards, to sell, and it was agreed that the commission on all sales made of stock shipped by Greer & Way should be divided between defendants and said firm,—thus clearly indicating that not one, hut various, consignments were to be made. This understanding is further indicated by the letter written by Greer & Way to the defendants, in which the latter are asked to write to the bank “that you will pay. our draft for any fat cattle we buy. I expect we will ship five or six loads of cattle the first of next week. We think we will get you a good many cattle from here. ” The request was not to inform the bank they would pay a single draft, but would pay their draft for any fat cattle they might thereafter buy. This, and the statement that they expected to get the defendants a good many cattle, and that they expected to ship five or six loads of cattle the first of the week following, does not indicate that a single shipment was in the contemplation of the parties. It was in answer to this letter that the telegram was sent. So, also, several of the drafts drawn by1 Greer & Way, discounted by appellee, and accepted by appellants, had written on their face, “Drawn on tel.—8,/14,” which unquestionably referred to the telegram in question. The parties, by their conduct, have placed a construction on the words used in the telegram, that it referred, and was intended to apply, not to a single draft, but to all such drafts as might be drawn by Greer & Way upon cattle shipped to appellants by them, and from the course of dealing, appellee was justified in so understanding and treating it, until notified to the contrary. The construction which parties put upon their contract will, if not inconsistent with its terms, be adopted, in its interpretation, by the courts. Vermont Street M. E. Church v. Brose, 104 Ill. 206.
Evidence of the attending facts and circumstances was competent, as tending- to illustrate that the promise was not intended to be confined to a single transaction. We think there was no error in the refusal of the court to take the case from the jury. This can not be done where there is evidence tending to prove the issue. It was for the jury to say whether or not the defendants promised to accept the particular draft in question. In respect thereof the court instructed the jury:
“In determining whether or not the defendants agreed to honor only one draft, or whether they agreed to honor any draft, drawn by Greer & Way, in favor of the plaintiff herein, for the cost of cattle consigned to the defendants, you will con- . sider the arrangement and character of the business between the defendants and Greer & Way, and all the facts and circumstances proven in the case.”
The objection made to this instruction is, that the jury has nothing to do with the arrangement and character of the business between the defendants and Greer & Way, and it is insisted that the only evidence proper for the consideration of the jury was the telegram, alone. This can not be so. In order to ascertain what parties intend by the use of the language employed, it is frequently of the first importance to consider the subject matter to which it relates, the position of the parties, and the objects they sought to attain. The contract must be viewed in the light in which the parties viewed it, and, as near as practicable, from their standpoint. The evidence was proper for the consideration of the jury, and the instruction is not obnoxious to the objection that it gives undue prominence to some of the facts, to the exclusion of others.
The first instruction given by the court is also objected to, as assuming that the bank was a bona fide holder of the draft for value, and that cattle were consigned to the defendants therefor. It is not subject to the criticism. It reads:
“If you believe, from the evidence, that the defendants agreed to honor the drafts of Greer & Way for the cost of cattle consigned to the defendants, and that the draft herein sued on was drawn for the cost of cattle, in pursuance of said agreement, and that said cattle were consigned to the defendants, then you will find the issues in this case for the plaintiff.”
It can not be fairly said that the instruction assumes any fact. If the defendants agreed to accept the draft before it was drawn, for the cost of the cattle, and it was so drawn, and the cattle were consigned to the defendants, they would be liable therefor as fully as though they had formally accepted the draft upon its presentation. Nor can the contention that the cattle for which the draft was drawn never reached defendants, but that an inferior lot was shipped to them, avail, as against the plaintiff, in this case. If it be true, as it probably is, that the cattle against which the draft was drawn ultimately were sold a.t Kansas City, the bank knew nothing of the diversion of the consignment, and the substitution of other cattle in their place or stead, and can not be affected thereby, whether the diversion was accidental or by design. As said by the Appellate Court: “Where a party agrees to accept and pay a draft for cattle bought and consigned to him, without requiring a bill of lading to be attached, he, and not the party who, in good faith, advances money on the draft, relying on such promise to accept and pay, takes the risk of the stock being diverted while in transit, either by accident or design.” It is apparent,, also, that appellants suffered no injury in respect of this particular shipment, as the cattle realized a sum in excess of the draft.
It is also objected that the court erred in giving the second instruction, which is as follows:
“Or if you find, from the evidence, that the defendants agreed to accept only one draft, and no more, then you are instructed, that if you find, from the evidence, that the draft sued on was ■ given for the cost of cattle which were consigned to the defendants, and that the defendants were notified of said draft by the holders thereof, and were asked to pay the same before receiving the cattle against which they were told it was drawn, and that thereafter the defendants received and sold the cattle against which .they understood said draft was drawn, and received the proceeds of said cattle, then you will find the issues in this case for the plaintiff.”
If the defendants took the consignment of the cattle with the knowledge that a draft had been drawn against the same by the consignors, they could not thereafter retain the cattle, or their proceeds, and repudiate the draft. (1 Parsons on Bills, 291; Nutting v. Sloan, 57 Ga. 397.) We think the instruction states the law with substantial accuracy, and that it is not open to objection.
It is also contended that plaintiff could not recover without proving that it was a bona fide holder of the draft. Without looking into the evidence on this point, the rule at law is, as we understand it, that the holder, of a draft will, in the absence of any evidence tending to show the contrary, be presumed to be a bona fide holder for value. (1 Parsons on Contracts, *249.) The evidence does not tend to rebut this presumption, but, we think, clearly shows facts and circumstances from which the jury would be justified in finding that the bank paid the amount of the draft to the drawers, relying upon the promise of the defendant to pay the same.
No good purpose could be served by noticing in detail the instructions given or refused by the court, further than we have already done. Those given covered every material matter proper to go to the jury in those refused.
Various objections are made to the conduct of the trial judge. It is enough to say that no exceptions appear to have been taken in respect of such conduct. If the trial judge was guilty of impropriety,—which, however, we are unable to find in this record,—the party objecting must, by objection and exception, properly preserve the same in the record, if he desires to insist upon the same upon error or appeal.
The objections here made are very numerous, but we shall particularly notice only one other,—that in respect of the verdict of the jury. The form of the verdict was: “We, the jury, find the issue for the plaintiff,”—no damages being assessed by them. The reason for this appears to be that the defendants had suffered judgment to go against them by default, and the court thereupon assessed the damages and rendered final judgment. On a motion by the defendants to set aside the default and for leave to plead, that court stayed proceedings on the judgment, and allowed the..defendants to plead, hut refused to set aside the judgment, allowing it to stand as a security for the plaintiff until the trial of the issue presented by the pleas. If the defendants failed to establish their defense, judgment was to 'stand. Under such circumstances, the verdict of the jury was not erroneous in form or substance, as the question of damages was not submitted to them. A motion to set aside a judgment rendered on default is addressed to the sound legal discretion of the court, and ordinarily the refusal to grant the same can not he assigned for error. Here the defendants availed themselves, as they might, under the leave of the court, to plead to the merits. Having done so, and the issue submitted to the jury having been found adversely to them, they can not complain, under the circumstances here shown.
We have carefully considered the very numerous points made by counsel, and failed to find in any of them such error as would justify a reversal of the judgment. We are satisfied, from the whole record, that substantial justice has been done, and the judgment of the Appellate Court must be affirmed.
Judgment affirmed.