
    
      W. E. Crowe & Co. v. H. C. Bruce & Co.
    Bills and Notes — Action on Demand Draft — Abatement—Premature Suit-Demurrer.
    In an action on a demand draft, where the answer avers that the time of payment by agreement between the drawer and drawee, had been extended some four months, it is error to sustain a demurrer to the answer.
    Same.
    Such a mistake, admitted or indisputably proved, would have entitled the defendants to an abatement of the answer, and as between drawer and drawee, an admissible defense.
    APPEAL EBOM DAVIESS CIRCUIT COURT. C. P .
    October 13, 1868.
    Bruce & Go. filed their petition in the Daviess circuit court, seeking recovery on a bill of acceptance, drawn September 23, 1867, and accepted same day by Crowe & Co. Defendants demurrer being over-ruled, they answered alleging in bar of their action that Bruce & Go. agreed with them at the time of the acceptance of the bill, that they should have four months’ time in which to make payment, and left the acceptance with the Deposit Bank of Ownsboro for convenience of defendants, but that disregarding said agreement, the acceptance was placed in an attorney’s hands for suit, by said bank. Plaintiffs demurrer to said answer being sustained, and judgment rendered as prayed for, defendants appeal.
   Opinion oe the Court B\r

Judge Robertson :

If, as averred in the answer, the order was drawn for payment of goods bought on a credit of four months and that, through inadvertance or mistake, the credit was omitted in the order and in the unqualified complaint on sight, the action was brought prematurely and the appellee was not entitled to interest. Such a mistake, if admitted or indisputably proved, would have entitled the appellant to an abatement of the action, and was, as between drawer and drawee, an admissible defense.

Lindsey, for appellants.

Weir, for appellees.

The circuit court therefore erred in sustaining the demurrer to the answer and thereupon rendering judgment for principal and interest.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings.  