
    THE BANK OF COMMERCE OF MEMPHIS v. J. G. SHAW BLANK BOOK CO.
    
      Bills of exchange.—Liability on acceptance made before bill drawn.—2 R. S. (Edm.) 722, § 8.
    To constitute a liability under the statute (2 R. 8. [Edm.] 722, § 8), on an acceptance of a bill before it is drawn, there must be an unconditional promise in writing to accept the bill sued on.
    Where there is nothing in the letter relied on to inform one that it was proposed to draw a draft, or that a draft was to be accepted when drawn, it is incompetent to supply the deficiency by parol.
    Ruiz v. Renauld, 100 N. Y. 257, distinguished.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided December 17, 1886.
    Exceptions taken by the plaintiff and ordered to be heard in the first instance at general term.
    Action to recover from the defendant the amount of two drafts drawn on it by the firm of Wills & Wildberger, of Memphis, the drafts being discounted by the plaintiff. The defendant did not accept them in the usual way, but the plaintiff claimed that the defendant had written a letter which must be construed as an unconditional promise to accept, under the statute (1 R. S. [Edm] 722, § 8), and that the plaintiff having discounted the drafts on the strength of this letter, the defendant can be held as acceptor.
    The letter in question was as follows :—
    “New York, July 2, 1883.
    “ Messrs. Wills & Wildberger :
    “Gentlemen:—We find you have to pay us about nine hundred dollars the present month. We now propose to extend this amount if necessary by a payment of ten per cent, and interest. You must be aware this constant extension with small payments cannot give us confidence to increase or continue your account; and it has occurred to us as your orders have been quite liberal, that your business must be sufficiently active to make a better showing. If we were satisfied that your condition was such as to secure us from ultimate loss, we would have much less objection to the method we are now doing business with you, or we would systematize your credits, that you could keep a full stock to your advantage. Let us hear from you.
    “ Yours truly,
    “J. G. Shaw, P.”
    It appeared from the testimony of Mr. Wildberger, a member of the firm who drew the draft in question on defendant, that the mode of dealing with the defendant company was, that “ goods were bought by the firm from the company, on four months’ time and an acceptance given for the amount.” He also testified, that the $900 mentioned in the letter referred to paper of said firm of Wills & Wildberger, maturing during the month mentioned, and that the whole amount was represented by drafts upon his firm ; that the company had been in the habit of drawing upon his firm for acceptance, and had been extending their paper for four or five years, and he described the method of extension, as follows :— “ That if the firm could not meet a note it would draw back for part of it; make a sight draft on defendant for the part it was unable to pay and have that draft discounted in the bank ; ” he further stated that he never drew any drafts on the company except as part or whole payment of his firm’s acceptances, and that the drafts in suit were drawn for that purpose. There was some testimony tending to show knowledge by plaintiff of this course of dealing between said firm and defendant, and that it was induced to cash the drafts in question by the reading of the letter above referred to.
    The defendant offered no testimony, and at the close of plaintiff’s case the court denied plaintiff’s motion for the direction of a verdict, and directed a verdict for the defendant, to which rulings plaintiff excepted.
    
      Gibson & Whiting, and John B. Whiting, for plaintiff :
    I. It is not necessary that there should be an explicit reference to bills of exchange in the letter itself (Ruiz v. Renauld, 100 N. Y. 256).
    II. The letter when taken in connection with the course of 'dealing of the parties can only be construed as containing an authorization to draw.
    HI. There was sufficient evidence to make out a prima facie case of knowledge on the part of the bank of the dealings between the firm and the company. Assuming then, that there was such a course of dealing, it is clear from the authorities that evidence to show it was admissible, and it should be considered in construing the letter (Ruiz v. Renauld, supra; also Daily Reg. Sept. 14, 1883).
    IY- It has been repeatedly held, that an authorization to draw is equivalent to a promise to accept (Merchant’s Bank v. Griswold, 72 N. Y. 472 ; Barney v. Worthington, 37 Ib. 116 ; Merchant’s. Exchange Bank v. Cardozo, 3 J. & S. 162).
    
      Holmes & Adams, and George H Adams, for defendant.
   By the Court.—Ingraham, J.

In order to make tile defendant liable there must be “ an unconditional promise in writing to accept ” the bill. This promise must be in writing, and it must be to accept the draft or bill of exchange sued on.

The letter relied on by the plaintiff contains simply a proposition to extend the payment of the $900 coming due during the month. There is nothing in the letter that would inform any one that it was proposed to draw a draft, or that a draft was to be accepted when drawn.

Where the contract is required by law to be in writing the material parts of the contract must be embraced in the writing, and it is incompetent to supply any deficiency by parol. This rule has been applied so frequently in cases arising under the statute of frauds that it is hardly necessary to cite authorities. The case of Wright v. Weeks (25 N. Y. 153), is however, in point.

In the case of Ruiz v. Renauld (100 N. Y. 257), relied • on by the plaintiff, the letter said to contain the promise was in answer to a letter written by the drawer of the draft sued on, which contained a request to allow the writers “to continue our drafts,” and stated “We expect that you will allow us to continue our drafts and remittances as we have been doing until now,” and in reply to such request the defendants wrote that “ In the meantime we naturally rely upon the renewal of the drafts due on the 29th inst.”

It will be seen that taking these two letters together, there was an absolute authority to draw the drafts sued on for the renewal of the drafts due on the 29th, and that was held to be sufficient.

But in the case at bar, no request for the renewal of any existing drafts is in evidence, and no authority to draw or promise to accept a draft can be made out by the letter itself. No authority to draw or promise to accept the draft is in writing.

We think the exceptions should be overruled, and judgment ordered for the defendant on the verdict with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.  