Wilkinson v. Phelps

Morphy, J.,

delivered the opinion of the court.

The plaintiffs seek to recover of defendant the amount of a draft of seven hundred dollars, drawn on them for his accommodation, in favor of A. Fisk, Watt & Co., together with certain commissions due them for acceptances on other drafts of defendant, set forth in an account annexed to their petition. The defence set up is¿ that the defendant has never received any value for the draft; that the plaintiffs have never paid it, and are not the owners of it. There was judgment below for the plaintiffs, from which the defendant appealed.

From defendant’s answers to interrogatories propounded in the petition, it appears that at the time the draft was accept*307ed, or at its maturity, he had no funds in the hands of the plaintiffs, and that he passed off the draft in payment to Fisk, "Watt fy Co., after its acceptance.

The possession of a draft by an accommodation acceptor, coupled with the fact that it has been put in cii> culation by the drawer, is sufficient to authorize the holder to recover, because payment by him will be presumed until the contrary is shown.

It is urged that the plaintiffs cannot recover without showing that they have paid the draft, because the endorsement of the payees is erased and he (defendant) received no credit from them for its amount. We are clearly of opinion, that the possession of a draft by an accommodation acceptor, coupled with the fact that it has been put in circulation by the drawer, is sufficient to authorize the former to recover; because payment by the acceptor, under such circumstances, will be presumed until the contrary is shown. On examining the account current of the payees with defendant, it appears that in January, 1834, the latter was credited with the acceptance of seven hundred dollars, which was to mature on the 5lh March, following, and at this last date the draft not having been paid on the very day of its maturity, we find defendant debited with its amount, and with three dollars for the costs of the protest; the account closes on the next day, the 6th March, 1834. It would have been easy for the defendant to prove, by the payees, that the draft had not been subsequently paid, and thus destroy the presumption of payment resulting from the plaintiffs’ possession of it.

The circumstance of the payees erasing their endorsement on the back of the draft, appears to- us immaterial. It is even, we believe, a customary thing in business for an endorser to erase his name on being paid by a prior party. This draft was probably endorsed for the purpose of collection in bank, and when the plaintiffs afterwards took it up, they could not object to the payees erasing their name from it. The commissions claimed by the plaintiffs, we think, have been satisfactorily proved.

It is, therefore, ordered, that the judgment of the court below be affirmed, with costs.