
    No. 387
    ROSCOE et v. BREWER et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1844.
    Decided March 14, 1927
    147. BILLS & NOTES — Acceptance—Evidence that drawee received and retained an order without communicating to the payee his intention as to whether or not he would accept it, does not constitute an acceptance by the drawee.
    2.Fact that payee sent order to drawee by mail could not impose upon the latter the obligation to return the order or to notify the payee of his refusal to accept it.
    First Publication of this Opinion
    Attorneys — Marion W. Bacome for Roscoe et; Fritsehe, Kruse & Winchester for Brewer et; all of Toledo.
   WILLIAMS, J.

Ezra and Bertha Roscoe began an action against Robert Brewer and Archie Bumpus in the Toledo Municipal Court and judgment was rendered in favor of the plaintiffs against both defendants. ' •

Bumpus took an appeal to the Lucas Common Pleas where the case was tried upon the second cause of action of the petition, which set forth that Brewer was an employee of Bumpus and while so employed gave to plaintiffs an order upon Bumpus; that plaintiffs delivered the oredr to such defendant who accepted same and thereafter refused to pay plaintiffs any sum whatever on said order. The Common Pleas directed a verdict in favor of Bumpus and entered judgment for costs thereon.

Error was prosecuted by the Roscoes and the Court of Appeals held:

1. An order drawn on a debtor for a part of the funds in his hands and unaccepted' by him, does not operate as an assignment of a part of the fund as against the drawee so that an action for a money judgment may be brought on the order by the payee against the drawee.

2. The _drawee of the order cannot split up his right of action for wages by issuing an order for less than the amount of the whole indebtedness and compel the drawee to pay it.

3. The assignment of part of a right of action is not binding on the debtor unless assented to by him. Railway Co. v. Volkert, et. 58 OS. 362; 369; Railway Co. v. Supply Co. 6 C. C. N. S. 429.

4. Evidence that drawee received and retained order without communicating to the payee his intention as to whether or not he would accept it and that drawee told drawer he would pay it in a few days, does not tend to show an acceptance.

Judgment affirmed.

(Richards & Lloyd, JJ., concur.)  