
    
      John L. Strohecker vs. N. A. Cohen.
    
    1. A promise to accept an existing 1)111 of exchange, or one to be drawn, is binding in favor of one who purchased it, on the faith and credit of such promise, for a sufficient consideration.
    2. Such promise is an original undertaking, not affected by the statute of frauds ; and it is wholly immaterial whether it be in writing or by parol.
    3. But a parol promise to accept a bill founded on no new consideration, is not binding, either as an acceptance, or a binding promise to accept.
    4. Therefore, a verbal promise by C., to accept a draft drawn by T., in favor of S., to whom T. was indebted, S. having given credit to T., not on the faith of C’s. promise, is not binding.
    
      Tried before his Honor the Recorder, in the City Court of Charleston, April Term, 1842.
    This was an action of assumpsit brought on two drafts, drawn by T. V. Sessions, on defendant, in favor of plaintiff, and alleged to be verbally accepted by defendant. The following is the evidence. ■
    
      T. V. Sessions, sworn. — Testified the drafts were drawn by him. The defendant had a conversation with him a short time after they were drawn, and said he had accept■ed them — they were in favor of plaintiff. Defendant lives •in the city.
    
      Cross-examined — He said the first draft was for $150 84; ¡and the second for $300. He first.' signed one draft for the whole amount; he afterwards divided them, at the instance of plaintiff. Cohen told witness he had accepted •them; before this he had told him that Strohecker had bought lumber ’ for him, and he wanted to pay him, and he said he would accept. Witness got a little lumber .from plaintiff after these drafts, about $20 — has not paid for it — he did not draw an order for $46 after these. After giving the drafts to plaintiff, he is still indebted to him ; the lumber for whioh the drafts were given, was all applied to Cohen’s house, none was applied to Howell’s house. •Some time afterwards, Cohen annexed certain conditions don’t recollect what they were. Date of drafts, 18th of January, 1842 — up to that time,' don’t think he had received more than $500. A large portion of the work was done at that time — whole amount of contract was $2,650. All materials and journeymen were to be paid by witness —he relied on Cohen for money to do this; one half of the work was done when he received $1000. At the final settlement between Cohen and witness, there was nothing due him, and these orders were not included in the settlement. Witness, at the time, mentioned these orders of plaintiff; he said he would not pay them, nothing was left to pay them with.
    
      In reply. — Cohen paid drafts after these were drawn; he had funds in his hands at the time ; plaintiff knew of Cohen’s promise to accept these drafts, and received them upon the faith of such promise.
    
      Defence.
    
    
      N. A. Cohen, the defendant,
    sworn. — Testified he never saw the two drafts until they were handed to him by Mr. Kunhardt; recollects the draft of $450 — plaintiff asked him to acc.ep't it; he told him the time for finishing the work was within ten days, and the work was scarcely commenced. Said he could not accept at that time, and asked the plaintiff if he could not urge Sessions to complete the work; said if he did so, he would accept the-draft — asked plaintiff what the draft was for; he said for $300 worth of lumber sent to his building, and the balance for lumber sent to Howell’s — he said there were drafts now unpaid, and he had already paid $1000 ; but said he would accept a draft for $300, if there was money enough after paying the workmen. After this, Sessions came to him, and said plaintiff was in want of money, and asked him to accept the draft in writing, as he wanted to get it discounted — refused to accept it in writing ; plaintiff was to have been security for Sessions on his contract. Sessions did not lay out one dollar, but what came from him. Plaintiff asked him to accept in writing, and he refused. At the final settlement he had overpaid Sessions $50. About a week ago, was the first time he saw these drafts. Sessions was always in his debt; he found by the 18th of January, that Sessions was working very slow and drawing very fast.
    
      Cross-examined. — He said, knows nothing of these drafts - — he paid Sessions in cash about $450 — when he had selected lumber, <fec., told him to draw. In a conversation with Conklin, .told him that Strohecker had brought a draft from Sessions, and if they went on in that way, they could not get paid. Witness told him if he would get a draft, he would accept it, if the work was done to his satisfaction. Swears positively that he did not tell Conklin that the draft of Strohecker played the devil with the funds ; he referred to funds for some slate which he had to pay for, after furnishing Sessions with the money to pay for them; he never got the first draft in his hands; never told either to get the two drafts; did not tell Sessions to draw drafts, or that he would accept them.
    
      In Reply.
    
    
      W. H. Conklin, sworn. — Testified, he was at the work, and Cohen said to him, he had just accepted two drafts in favor of plaintiff, for $450. Saw plaintiff in the yard just before this. Witness wanted money, and Cohen told him the two drafts he had accepted for Strohecker, had played the devil with the funds.
    
      Cross-examined. — Cohen said he had accepted the drafts, payable when the work was finished; he said there was money enough to pay all; something was said about the glate; did not say that played the devil with the funds.
    
      
      In reply. — He said the work is finished.
    
      John L. Strohecker, the plaintiff,
    sworn. — Testified, he first presented to Cohen a draft for $450 84; he said he would accept it, but would prefer making it into two drafts; did so, and Sessions signed them ; same day carried the two drafts to him, and asked him to accept them in writing; he said it was useless, the work would be finished before they became due, and he would pay them; called on him the latter end of February; he said he had no funds, and could not pay them; when he presented the draft of $450 84, he took a memorandum.
    
      Cross-examined— Cohen complained that Sessions was going on slowly. Sessions owes witness, independent of these drafts, $500.
    Here the testimony closed.
    His Honor charged the jury, that the promise to accept, if they believed it to be made, did not amount to an acceptance, and therefore the only question for them was, did the defendant verbally accept these drafts.
    The case was submitted to the jury, who rendered a verdict for the defendant.
    The plaintiif appealed, on the following grounds.
    1st. Because the jury have disregarded the charge of his Honor, and decided that a verbal acceptance of an inland bill is not binding.
    2d. Because the evidence proved an acceptance unconditional.
    3d. Because,, by the statement of the defendant himself, he agreed to accept and pay, if he had any funds of T. V. Sessions in his possession, and the evidence proved that he paid other drafts, after this was drawn and accepted.
    4th. Because, after the date of the drafts in the present action, his own admission proved that he had money of T. V. Sessions in hands.
    5th. Because the case was captiously decided by the jury, without evidence, and against the charge of his Honor.
    6th. Because his Honor erred in saying that the agreement to accept in this case, was not binding on the defen¿ant.
    
      Kunbardt, for the motion,
    cited the following authorities: 2 Peters, 170; Bailey on Bills, 156; 1 Bailey, 522 ; 2 Wheaton, 66; 3 Burr. 1663 ; 1 Peters, 264; 10 J. R. 207, 209 ; 2 Gallison C. C. Rep. 238; 1 Law Comp. 72; 16 Mass. Rep. 341; 1 Story’s Rep. 32; 12 Wendell, 593; 3 Kent Com. 83 ; Chitty on Bills, 73; 4 East, 57; 17 Law Library, 80; 25 E. C. L. Rep. 365.
    Phillips, contra,
    cited 2 Salk. 644 ; 4 Day’s Rep. 42; 5 Mass. Rep. 353 ; 2 Strange, 1000; 16 Law Library, 66 ; 1 East, 98; 10 J. R. 212; 15 ib. 12.
   Caria, per

Evans, J.

In this case, both parties, by consent, were sworn, and all the evidence which the case admitted of, was before the jury, and passed on by them ; so that the only matter to which this court has directed its attention, has been the alleged error in the Recorder’s charge to the jury, “that the promise to accept, if they believed it to have been made, did not amount to an acceptance.” If this was error, then a new trial must be ordered. A parol acceptance, it is conceded, is binding. Every bill is prima facie drawn on funds of the drawer’s, in the hands' of the drawee, and when accepted, the acceptance operates as a transfer of the funds to the payee ; the drawee then becomes a holder of the money to the use of the payee. The contract is executed, and the statute of frauds does not apply; but a verbal promise to accept is an executory contract. In the case of Townly vs. Sumral, 2 Pet. 170, it was decided, that “ if a person undertakes, that if another will purchase an existing bill, or one to be drawn thereafter, and as an inducement to the purchase, to accept the bill, the promise is binding in favor of one who purchased on the faith and credit of such promise, fora sufficient consideration.” The purchaser of the bill pays the money upon the faith of the promise, and is entitled to claim a fulfilment of it. Such a promise is an original one, founded on a consideration moving between the parties, and is like the case of A saying to B, pay C so much money, and I will repay it. Regarding such a promise as an original undertaking, it is wholly immaterial whether it be in writing or by parol; the statute of frauds does not apply to original, but to collateral undertakings, Whether the promise be written or verbal, it is binding only as an original undertaking ; and I apprehend it should be declared on' as such, and not as an acceptance. I have found no case in which it has been decided that a parol promise, founded on no new consideration, has been held either an- acceptance or a binding promise to accept. In the case under consideration, the debt was already due. The plain tff did not trust his debtor, Sessions, on the faith of any promise made by the defendant to accept a draft. None of the witnesses say that Strohecker gave any credit to Sessions, or trusted him with his lumber, on the faith of Cohen’s promise to accept the bill. If the plaintiff, on'the faith of the defendant’s promise to accept, had delivered his lumber to Sessions, then there might be, as was said by Judge Story, in the case of Townly vs. Sumral, “anew and binding promise, founded on an original consideration,” passing from Cohen to him, and not a mere guaranty of an existing debt, due by Sessions to the plaintiff

The motion is dismissed.

O’Neall,' Butler, and Wardlaw, JJ., concuri’ed.

Richardson, J.

The question is, does a promise, made in words, and not in writing, to accept a bill of exchange, constitute a binding obligation. As a question of law, we have no express decision; but we "have decisions enough, that actual ácceptance, in words only, is binding. The principle of law" is, therefore, that acceptance need not be in writing. We have also this decision, that a promise to accept a future bill in writing, is binding. The principle is, that a promise so made tó accept, is binding. And why is not a verbal promise to accept, as Well as a verbal acceptance^ put on the same principle ¶ As a proposition of law, I can perceive no distinction. Either both or neither is ex-, eluded by the statute of frauds; - and the moment we have decided that the verbal acceptance is binding, and that a promise to accept, although the case was of a written ex-, e'cutóryjiromise, we have decided, that from the principle established, of a verbal acceptance being good, a verbal promise to accept must also be good, and a consequence of that principle.

Decisions of past cases establish principles that are inseparable from their proper consequences. The old case in 1 Bay, p. 319, decided that the vendor of that valuable species of property,” (negroes) for a full price, impliedly warranted the physical soundness of the negro sold. But the principle of the same implied warranty followed for every species of goods and chattels, and a new doctrine was introduced. During this court, we have decided, that a special demurrer, for a want of a bill of particulars, is good; and yet the bill of particulars is no part of the declaration demurred to. But, as we find, the early case of Smyth vs. Lehre, 2 Con. Rep. 240, was stricken off the docket, for want of a bill of particulars. That decision implies that the bill of particulars was adopted as an essential part of the declaration; and as we further find, evidently in pursuance of that decision, and naturally from it, .some judicial dicta, that to “ quash the proceedings, or to demur,” for want of such particulars, is the remedy, we adopt it as the regular consequence of the first decision, and uphold the pleader who adopted it, as the orthodox course from the first judicial text, in Smyth vs. Lehre.

I follow the same parity and the equality of reasoning, in the case now before us, to wit: a verbal acceptance being good, and a written promise to accept also good, then a verbal promise to accept a bill of exchange, cannot be null and void in law, as supposed in the charge of the Judge, unless we introduce an entirely different principle, i. e. the provisions of the statute against frauds and perjuries. But after ruling the statute inapplicable to verbal acceptances, how can. we apply it as forming the law of verbal promises to. accept 1  