The opinion of the court was delivered by
Brewer, J.:The error alleged in this case is the sustaining of a demurrer to the petition. The petition contains two counts. The demurrer is general to the whole petition, so that if either count be good, it ought to have been overruled. The first count is for damages for failing to accept and pay certain drafts drawn by plaintiff upon defendants. It alleges that defendants “ for a good and valuable consideration promised plaintiff to accept and pay all drafts drawn by him on them on account of certain government contracts in which they were interested, and the costs and expenses of which they had promised to pay by accepting and paying plaintiff’s drafts as above;” that he drew certain drafts, describing them, on account of and for said costs and expenses; that the same were not accepted or paid by said defendants, and he was compelled to pay the several payees thereof the amounts of the drafts with costs of protest and damages, of all of which defendants had notice, and though often requested had failed to repay plaintiff. This it will be perceived is not an action on the drafts, nor an attempt to charge the defendants as acceptors by virtue of a previous promise to accept. It seeks to make them l’esponsible for damages for breach of a contract to accept. The distinction between the two is obvious, and is well pointed out in the case of Boyce v. Edwards, 4 Peters, 111. See also Carnegie v. Morrison, 2 Met., (Mass.) 381. For breach of such a contract a party would be entitled to at least nominal damages, and more if more were alleged and proved. It follows therefore that a petition stating such a contract, and the breach of it, states a cause of action; and a demurrer to. it should be overruled. There is nothing in the statute nor in the law-merchant that requires such a contract to be in writing. Our statute by implication plainly recognizes such a cause of action. (Gen. Stat., 116, § 12.)
The judgment of the district court will be reversed, and *99the case remanded for further proceedings in conformity with the views herein expressed.
All the Justices concurring.