
    No. 1103.
    Daniel Blum v. Bidwell & Reddington.
    Where the bolder of a bill of exchange or draft presents it to the drawer, who refuses to pay it. he must prive the drawer notice of the dishonor before he can bind him, unless he shows that the drawer had no funds or assets in the hands of the drawee at the time; and that he had no reason, to expect that the draft would be honored or paid at the time it was drawn.
    Where the holder of a draft seeks to recover on a subsequent promise, he must show that the promise was made by the party sought to be made liable, with a full Knowledge of his discharge. A promise to pay after discharge must be absolute and unconditional.
    The plea of payment relates to transactions between plaintiff and defendant, and exclusively to sums paid by the latter to the former in discharge or in part payment of the plaintiff's demand.
    PPEAL from the Third District Court of New Orleans, Fellowes, J.
    
      J. B. Cotton, for plaintiff and appellee.
    
      F. Filleul, for H. Bidwell, defendant and appellant.
    
      Bv ieffor IL Bidwell, defendant and appellant.
    
    * * “A bill of exchange is presumed to be drawn on funds, with the understanding b< tween drawer and drawee, that it is an appropriation of the funds of the former in the hands of the latter, and acceptance is an admission that it was so drawn, and of such a relation between the parties.” Parson’s Notes and Bills, vol. 1, p. 323.
    It seems to have been held that the mere fact of acceptance is sufficient proof of a right to draw, or a right to expect that the bill would be honored, although the drawer may have no funds. Parson’s Notes and Bills, vol. 1, p. 544.
    And he is then entitled to notice of dishonor. Id., note same page.
    Any funds, although to a very small amount, entitles him to notice. Id. page 546.
    Protest is necessary by the universal law merchant, in the case of Foreign Bills. Parsons, vol. 1, p. 642.
    Protest.has become, by the custom of merchants, a part of the constitution of a foreign bill. .Parson’s id., note b.
    
    The draft drawn at Matamoras, Mexico, on Brownsville, Texas, is clearly a foreign bill. It was payable at sight.
    The right to demand acceptance is merged or confounded, as Pardessus says, with the right to demand payment. Kent’s Commentaries, vol. 3, page 105.
    it must be presented in reasonable time, or the holder will have to bear the loss proceeding from his default. Kent, vol. 3, p. 106.
    When a bill or note is not presented for payment, or not presented at the time, or to the person, or in the place, or in the way required by law, all parties but the acceptor or maker, are discharged. Parson’s Mercantile Law, p. 110.
    The bill should have been protested for non-payment, and notice of protest sent to the drawer within reasonable time. If the parties live in the same town notice must be given, so that the party to whom it is seiw may receive the notice in the course of the day next after that in which the party sending has knowledge of the fact. If the parties live in different places, the notice must be sent as soon as by the first practicable mail of the next day. (Authorities there cited.) Id. p. 115.
    There is no presumption of notice, and the plaintiff must prove that it was given, and was sufficient; thus proving that it was given in two or three days is insufficient, if two would have been right, but three not. Id., p. 116.
    Notice should be given only by a party to the instrument, who is liable upon it, not by a stranger.
    And it has been held that notice could not be given by a first endorser, who, not having been notified, was not himself liable, 'id., p. 110.
    In general, all parties to a negotiable paper, who are entitled to notice, are discharged by want of notice. The law presumes thorn, to be injured, and does not put them to the proof. Id. 118.-
    
      In Bridges v. Berry, 3 Taunt. 130: “In this case the defendant being unable to pay a bill when due, which he had accepted, obtained time and endorsed to the plaintiff, as a security, a bill drawn by himself to Ms own order, which, when due, was dishonored by the drawee, but the holder omitted to give the defendant notice: Held — That by this omission the defendant was not only discharged as endorser of the one bill, but also as acceptor of the other.” Quoted in Parson’s Mercantile Law, p. 118. * * * The District Judge says: “ Again, Bidwell promised to pay the draft sometime after its maturity, and supposing he had been discharged for want of notice, a new obligation was created, and he was again made liable.”
    We are again compelled to join issue with the District Judge, and to deny the fact as found by him.
    Bidwell did not promise to pay the draft. Nor was this imaginary promise made “ sometime after the maturity of the draft.” The expression “ sometime,” does not extend to a period of three years.
    And as for his conclusion, that Bidwell contracted a new obligation by his alleged promise, it rests upon no foundation, because thero is no proof that it ever was made to the plaintiff, and if such a promise had been stated to a third person, it could not create any new obligation towards the plaintiff, for whom it is not shown to have been intended, nor had it been accepted by him, if it were interided for him.
    The testimony bearing upon this point is very short, and it is indeed painful that it could have been so badly misstated, and the conclusions drawn so illogically.
    Here is the whole testimony. The plaintiff’s only witness, S. Sterne, says: “ Witness never saw Bidwell after he got the note (July, 1803, Record, p. 22) until he saw him in this city, about last spring (1866) and before this suit was brought. Bidwell and Reddington came to see him, and Bidwell offered to pay ¡ffáOO cash, and give Reddington’s note without his individual security, which proposition witness made known to the owner of the draft, who refused it. ” See Record, p. 23.
    Let us examine this testimony wdth some attention:
    1. The witness did not state that he was the agent of the plaintiff; that he was authorized by him to accept a compromise, or that he intended to inform the plaintiff of the conversation which he would have with Bid-well, in fact that he had any authority to bind the plaintiff'. This witness tells the Court, that in 18G3, “ the draft was given to him by Mr.Frank, the original payee, to collect from Reddington,” and that was the limit of his mandate. It is shown by the pleadings, and by the endorsement of £3. Frank, that the draft had passed from the hands of Frank into those of the plaintiff, Blum; but it is proved nowhere, that the witness was the agent of Blum, or had any authority to collect the draft from Bidwell. It is clear that Bidwell could not enter into a new obligation, because he was not in the presence of any person with whom he could enter into a new obligation; there must be in every contract an obligor and obligee, here we had no obligee.
    But let us look a little more into these few lines of testimony: “ The witness stated that he made known the proposition of Bidwell to the plaintiff, who refused it.”
    But he does not state that he was authorized by Bidwell to do so, or that Bidwell had intended that he should make it known to the plaintiff;, he stated that Bidwell came to see him, but he did not state that Bidwell came to see him for the purpose of making this proposition, and the Court cannot suppose that he paid his visit to the witness for that purpose, because there is no proof that he had made an antecedent call on Bidwell to collect the draft. We are then left to conjecture the visit of Bidwell had another object, that the witness and Bidwell came to talk about this ■ draft par hazard in a loose conversation, just as they would have talked of any other subject, without any intention of entering into any contract. 5
    The witness stated, “ that Bidwell offered to pay $400 cash, and give Reddington’s note without his individual security.” But, again, we are in the dark; thé witness does not state for what purpose Bidwell would make this proposition; he does nowhere state that it was to pay the draft. That could not be, because the fact that Bidwell insisting that the holder should take Reddington’s note without his individual security, is a clear proof that Bidwell insisted that it was Reddington’s debt and not his, and that if he made the offer of $400, it was not to enter into a new obligation, but to buy Ms peace, which is a very lawful intention. Adore non jrrdbanie reus absolvitur.
    
    * * To entitle the holder to recover against an endorser or drawer, upon a promise to pay, after the latter has been dischai’ged by the laches of the former, plaintiff must show that the promise was made by the defendant with a full knowledge of Ms discharge. 8 M. R. 148. 12 L. R. 465. 1 R. R. 572. 2 R. R. 158. 7 R. R. 418. 10 R. R. 40-61. 12 R. R. 251. 2 A. R. 824.
    The promise with full knowledge must be absolute, creating in law a new obligation. Lambeth vs. Petrovich, 16 L. R. 815.
    An endorser who pays in ignorance of his discharge, by a release to the maker or insufficiency of the demand and protest, may recover back the money so paid. 17 L. R. 386. 7 R. R. 334. 5 A. R. 12.
    It is useless to tire Your Honors with further citations, no rule of law is better and more universally settled.
    The testimony of a single witness is insufficient to prove a promise to pay a bill exceeding five hundred dollars, without the piroof of corroborating circumstances appearing aliunde. C. C. Art. 2357. 2 R. R. 304.' 7 R. R. 451. 7 A. 54. 14 A. R. 705.
    The Court will search in vain, in the record, for any corroborating circumstances of the testimony of the plaintiff’s witness, and in examining the case with attention Your Honors will find that all the circumstances of the case tend to show that his testimony is unreliable.
   Labauve, J.

The appellant is sued upon a bill drawn by him, dated 4th of July, 1863, on Thomas Reddington, of Brownsville, Texas, for $1,000, and payable on demand.

The plaintiff alleges that he resides in New Orleans; that said draft was presented to said Thomas Reddington, time and again, in Brownsville, shortly after it was drawn, and he verbally accepted the same, and has repeatedly since said date, and at other times and places, promised to pay said draft as an accommodation acceptor; that he did not cause the said draft to be protested for non-payment, because the drawer had no funds in the hands of the acceptor at the time of drawing the bill, nor at any time subsequently. He prays judgment for $2,000, with interest, from 4th July, 1863. A final judgment by default was rendered against Thomas Reddington, the drawee and acceptor, for $1,000 in gold, or its equivalent in currency, with interest. This judgment was not appealed from.

H. Bidwell, the drawer, answers by a general denial, and specially that he was not notified of the protest and dishonor of the draft, and that in the opinion of defendant the draft had been paid long ago, and the present holder has no right to, interest or claim in the same; that in point of fact, there is no longer any property or right in the draft sued on, and this fact is well known to S. Prank, the original holder of the draft, and that this suit to recover on this bill is fraudulent, and w thout any foundation. After the filing of this answer, plaintiff filed a supplemental petition, alleging that about the 1st May, 1866, in the store of D. Bloom, Stern & Co., No. 63 Customhouse street, and before and since, said H. Bidwell, the drawer, acknowledged Ms liability, and as drawer promised to pay the draft; admitted that it had not been paid by him or the acceptor, and that he had no funds in the hands of Reddington, and moreover, he admitted that the draft was given for goods at gold price. The answer to this reiterates the defence set up in the original answer.

The Court, after hearing the evidence, gave judgment against H. Bid-well, anil he appealed.

The plaintiff, having failed to protest the draft, and give notice to the -drawer to recover,.must show that the drawer had no funds or effects in the hands of the drawee, nor had any reason to expect that the draft would be honored. Williams vs. Brashear, 19 L. 370.

And to recover upon the alleged subsequent promise to pay, plaintiff must show that the promise was made by defendant, with a full .knowledge of his discharge. 1 R. 572. 2 R. 158. 7 R. 418. 10 R. 40-61. 12 R. 231. 2 A. 824.

• It appears by the testimony, .that when the draft was presented to Reddington, the drawee, he answered: "that he would pay it, if he had the money.” That does not mean that he had no funds or effects of the drawer in his hands; if anything, it admits impliedly his liability to pay, and .does not negative the presumption that he had funds of the drawer; and this is corroborated by the testimony of Currier, who says “thatBidwell and Reddington were doing business in Brownsville, and that Reddington yras owing Bidwell and witness $2,000.” Another witness, Tabor, testified that Bidwell and Reddington were doing business in Brownsville in 1863. We are of opinion that the plaintiff should show a notice to the drawer of non-payment.

The. subsequent offer of Bidwell to pay $400 cash, and give the note of Reddington for the balance, which offer was refused, does not bind Bid-well; it is in the nature of a compromise and conditional; a promise to pay must be absolute; besides, it is not shown that this offer was made with a.full knowledge of his discharge.

But the plaintiff contends that the defendant pleaded payment, and admitted the debt by that plea. The expression is thus: That in his opinion the draft has been paid tong ago. This means that it has been paid by some one that was liable; he does not say that he has paid it himself; he alleges a fact not apparently within his knowledge. The plea of payment relates particularly to transactions between plaintiff and defendant, and exclusively to sums paid by the latter in discharge, or in part payment of the plaintiff’s demand. 17 L. 259. 1 A. 254.

Upon the whole, we are of opinion that the plaintiff has failed to make out his case against Bidwell.

It is therefore ordered .and decreed that the judgment appealed from be annulled and reversed;, it is further ordered and decreed, that there be a judgment in favor of defendant, Bidwell, and that plaintiff pay the costs- of. .this appeal and those below, so far as this defendant and appellant is concerned.

Rehearing refused.  