Irving Browne Isaac Grant Thompson.

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Franklin Bank of Baltimore ▼. Ljnoh.

Wm. P. Afaulsby, for appellant.
Charles B. Roberts, for appellee.

Bartol, C. J. This suit was brought by the appellant a^inst
the appellee. The facts of the case were admitted, and so far as
material may be thus stated.

The appellee, living in Westminster, Maryland, sent to Baer Sl
Co., of Baltimore, the following telegram.

Westmikstek, Md., April 27, 1878.
To A. P. Baer & Co., 7 Oheapside, Baltimore:
You may draw on me for seven hundred dollars.

Edward Lynch.

The same was receiyed about two o'clock p. m. the same day,
being Saturday. On the Monday following, Baer & Go. drew their
draft on the appellee as follows^

(•700.) Baltimore, April 29, 1878.

At sight, pay to the order of ourselves, seven hundred dollars,
value received, and charge the same to account of

Arthcjr p. Baer & Go.

To Edward Lynch, Esq., Westminster, Md.

On the day of its dat«, the draft indorsed by Arthur P. Baer ft
Go. was received by the appellant, and the amount therefor placed
to the credit of the drawers, upon the faith of the telegram and
the authority thereby given, the same being shown to the appellant

The draft was sent to a bank in Westminster for collection, and
on the 7th day of May, 1878, was presented to the appeUee, who
refused to pay the same, whereupon it was protested for non-pay-

Upon this state of facts, the Gircuit Gourt instructed the jury
*^ that if they find that the draft was nerer presented to the de-
fendant for acceptance, and that there was no acceptance of the
same by him otherwise than that to be inferred, or implied from
the telegram ; and that he refused to pay the same when presented
to him for that purpose, on the 7th of May, 1878, then the plaint-
iff is not entitled to recover under the pleadings in this cause, even
though the jury may find ttie telegram was sent by the defendant
and received by Baer & Go., and that the plaintiff knew of the tele-

Digitized by


APRIL TERM, 1879. 377

FrmnkliD Bank of Baltimore y. LjnclL

" gram and received the draft and credited the firm of Baer & Co.
with the amoaut thereof, on the faith of the telegram, and of the
authority thereby given by the defendant to said firm."

To the granting of this instruction, and also to the refusal of the
prayer offered by the plaintiff, the latter excepted.

The plaintiff's prayer need not now be particularly noticed, as
the questions for our consideration arise upon the court's instruc-

And, first. Was the telegram equivalent to an acceptance of the
draft, entitling the plaintiff to maintain a suit thereon, as on an ac-
cepted bill?

It was decided by the Supreme Court in Coolidge v. Payson, 2
Wheat. 66 (affirming s. c, 2 Qallison, 233), " that a letter written
within a reasonable time before or after a bill of exchange is drawn,
describing it in terms not to be mistaken, and promising to accept,
18 if shown to one who takes the bill on credit of the letter, a vir-
tual acceptance binding the person who makes the promise." That
decision was based upon the cases of Pillans v. Von Mierop^ 3 Burr.
1663; Pierson v. Dtmlop, Cowp. 571, and Mason v. Hunt, 1 Doug.
296, decided by Lord Mansfield.

It would seem that this is not the law in England at this time,
as appears from the opinions of the eminent counsel, Sir Wm. Fol-
lett, Sir John Bayley, Sir Frederick Pollock and Mr. M. D. Hill, in
2 Story C. C. 219, 220, and from the case of Bank of Ireland y.
Archer, 11 M. & W. 384 m.

But the rule laid down in Coolidge v. Payson was afterward re-
asserted in Shimmelpenich v. Bayard, 1 Pet. 264, 283, and in Boyce
V. Edwards, 4 id. Ill, 121. It was recognized and approved by
this court in Lewis v. Kramer, 3 Md. 289, and seems to be well es-
tablished in this country, by the general current of judicial decis-
ions, many of which are cited in Hare & Wallace's note to the case
of Bank of Ireland v. Archer, 11 M. & W. 390 (Am. ed.).

The rule was laid down in Coolidge v. Payson with great strict-
ness and precision. To construe a promise to accept as equivalent
to an actual acceptance, it must be one " describing the bill in
terms not to be mistaken."

In Boyce v. Edwards, supra, it was said that *' Courts have lat-
terly leaned very much against extending the doctrine of \mpued
acceptances, so as to sustain an action upon the bill,'' and m the
•ame case it was said that '' the rule laid down in Coolidge v. Pay^

Digitized by



Franklin Bank of Baltimore v. Ljnch.

607t requires tlie authority to draw, to point to the specific bill or
bills to which it is intended to be applied, in order that the pwrty
who takes the bill may not be mistaken in its application; " or in
the words of Chief Justice Shaw, the authority to draw, or the
promise to accept, ought "specifically to describe or designate the
bill, so as to identify it, and distinguish it from all others," in order
to bring it- within the American cases. Carnegie v. Morrison, 2
Mete. 406.

We refer also to Wildes v. Savage, 1 Story, 22.

Upon the authorities we think it very clear that the telegram of
April 27 cannot bo deemed and treated as an acceptance of the

The telegram does not point to or designate the draft ; only the
amount for which Baer & Co. were authorized to draw is mentioned,
but in all other respects the telegram is silent, not specifying on
what time the di*aft is to be drawn.

In Wildes v. Savage, 1 Story, 22, the learned judge said that the
rule laid down in Coolidge v. Payson has never been held to apply
to a bill drawn at sight, or after sight ; and assigns very satisfaq-
tory reasons why a promise to accept a draft of that kind cannot be
deemed or treated as an actual acceptance.

Wc hold therefore that this suit cannot bo maintained as an
action upon an accepted draft, and for the same reason the appel-
lant is not entitled to recover upon the general money counts.

The instruction of the Circuit Court refers to the pleadings; this
requires us to examine them and to determine the nature and
ground of the present suit. This depends upon the construction
to be put upon the first count in the 7iarr. If it is to be under-
stood as declaring upon an acceptance of the draft by the appellee,
it is clear, from what has been said, that the plaintiff cannot recover
upon it. But is that the true intent and meaning of the count?

It docs not allege an acceptance by the defendant, actual or im-
plied, but the ground of tlie action, as there stated, is that the de-
fendant authorized Baer & Co. to draw a draft on him for 1700,
and promised that he would pay the said sum to the holder of the
draft on the presentation thereof to him, the defendant. It then
alleges that in pursuance of said authority, Baer & Co. drew the
draft payable at sight ; that the same was indorsed by Baer & Co.,
and passed to the plaintiff for value, and was received by the
plaintiff upon the faith of the authority given to Baer & Co., by

Digitized by


APRIL TERM, 1879. 379

Franklin Bank of Baltimore v. Lynch.

the defendant. It further alleges tho presentation of the draft to
the defendant and his refusal to pay the same. , . ; f .-.

This is not a count upon un accepted draft, but for tho breach by
tho ilefendant of his contract to accept and pay a draft, drawn on
him by his authority.

Tho declaration would be more technically accurate, if it had
avenod in terms the refusal of tho appellee to accept the draft
when it was presented, and Ins failure to pay the same at maturity,
but we think it is sufficient and substantially avers a breach by the
appellee of his implied promise to accept and pay tho draft accord-
ing to its tenor and effect.

The telegram authorized Baer & Co. to draw on the defendant
for $700. The authority did not specify or limit the terms of the
draft, or the time upon which it was to bo drawn. It is an authority
without condition or qualification. There is no evidence of any
commercial usage, or other testimony showing that such an authority
imports that the draft shall be drawn payable at or after any par-
ticular time ; nor is there any reason for saying that it did not
authorize a dmft payable at sight; this is left to tho discretion or
convenience of Baer & Co., and as the defendant did not impose
any limitation or restriction in this respect, we think it must be
construed as an authority to draw the dmft in question.

Such an authority implies a promise to accept the draft upon
I)resentation, and to pay it at maturity, that is to say, at the ex-
piration of the days of grace, viz., three days after sight.

Now the question arises, has the plaintiff a right of action for the
breach of that promise ? The only objection that could bo urged
to tho plaintiff's right to sue would arise from the supposed want
of privity between it and the defendant. The promise was made
to Baer & Co., not to the plaintiff. But this objection cannot be
supported. It has often been decided that such an authority to
draw and promise to accept and pay inures to tho benefit of any
bona fide holder of the bill who takes it on the faith of the promise.

In such case the import and meaning of the promise is that it is
not made exclusively to the drawer of the bill, but is a promise
made to any person into whose hands tho bill may come "bona fide
for value ; that the same sball be accepted and paid according to
its tenor and effect ; and such person may maintain an action tor
the breach of the promise.

This question was ably considered and decided by Judge Story

Digitized by



L&Dge V. Wagner.

in Rtiitsell v. Wiggin^ 2 Story, 213, and by the Supreme Court of
Massachusetts in Carnegie v. Morrison^ 2 Mete. 381, where the
subject is treated with great abihty in the opinion of Ohief Justice

The doctrine of the liability of a party, giving authority to draw,
to any bona fide holder of the bill drawn pursuant to such authority,
lies at the foundation of the law governing 'betters of credit"
in the commercial world, and is well considered in the two cases
last cited.

In tills case the plaintiif was a holder of the draft for valvs
{Swift V. Tyson, 16 Pet. 1 ; Maitland v. Oiiizens* National Bank,
40 Md. 540 ; 8. c, 17 Am. Rep. G20), and is not affected by the state
of accounts between Baer & Co. and the defendant; the evidence
mentioned in the first bill of exceptions was therefore immaterial,
and ought to have been rejected.

There is no evidence of fraud, collusion or bad faith on the part
of Baer & Co. and the plaintiff, in respect to the indorsement and
delivery of the draft; nor is there any ground for imputing laches
to the plaintiff in presenting the draft for acceptance.

For the reasons stated, we think the Circuit Court erred in giving
its instruction to the jury, and that the plaintiff's prayer ought to
have been granted.

Judgment reversed and new Irtcd ordered.

Note btths Rbportkr.— An authority to draw at ninety days, from time to time, in
such amounts as may be required, not exceeding a specified aggregate, is sufficient to oon->
stitute an acceptance. UUter Co, Bank v. Macfarlan, 6 Hili, 434 ; s. a, 8 Den. 558. See,
also, to same effect, NeUon t. Pint Nat. Bank, 4S Ul. 89 ; .moeS t. Lewis, 4 Mich. 450.
Daniels (Neg. Inst., 1 561) says: ** But while it should dearly appear that the bill oorrespondi
to the authority or promise, we cannot perceive that there should be any nicety of descrip-
tion, as to number, amount, date, or otherwise.** '* It is sufficient," he says, if ** it comet
fairly and reasonably within its terms/* In Central Savings Bank t. Bi<^uirds, 109 Mass.
418, a telegraphic authority to draw for $2,000, at tlilrty days, was held a Talid aooeptanoe.

Lanok V. Wagkbiu


Damages — eanstquential — ir^ncUon,

In an action on a bond given on an injunction restralnhig the erection of a stable
it was held that injury done to the plaintiff's cows, hy exposure to the
weather, and the consequential diminution of their flow of milk, was a
proper item of damage. {See note, p. 882.)

Digitized by


APRIL TERM, 1879. 381

Lange ▼. Wagner.

AOTIOJN^ on injunction bond. The opinion states the case. The
plaintiff had judgment below.

W. E, Hoffman^ for appellant.

//. P. Jordan^ for appellee.

Bartol, G. J. At the instance of Lange, the appellant, a writ
of injunction was issued by the Circuit Court for Baltimore county,
prohibiting the appellee from completing the erection of a brick
stable upon an alley-way, which Lange averred the appellee had no
right to close, without his consent The injunction was afterward
dissolved ; and this suit was brought on the injunction bond of the
appellants, to recover damages sustained by the appellee, by reason
of the injunction.

The right of action is not disputed; the only questions raised by
the bills of exception relate to the subject of damages and are pre-
sented in the form of exceptions to testimony, and to the rulings
by the court below upon the prayers.

These exceptions will be disposed of in the order in which they
appear in the record.

Fird exception. Proof was offered that the appellee was engaged
in supplying his customers with milk, and kept a number of milch
cows. His frame stable having become somewhat out of repair,
was partially torn down in the summer of 1877, and he began to
erect a brick stable in its place.

In August of that year, he was stopped by the injunction, which
continued till the 6th day of December following; after it was dis-
solved, the appellee went on to complete the building and had it
finished about the 25th of the same month. While the injunction
was in force, the appellee's cows were deprived of their accustomed
and proper shelter, and were more exposed to the weather.

The question propounded to the witness, and objected to by the
appellants, was ''what was the effect upon the cows, if any, in con-
sequence of being exposed to the wet and cold weather, because you
could not finish the brick stable while the injunction suit was pend-
ing?" It seems to us the question was pertinent and legal.

One of the grounds of special damage stated in the nart. was
*' the injury done to his cattle by exposure to the weather, requiring
extra care and food and causing their flow of milk to greatly de-
erease.^ Such damage was one of the direct consequences of tha

Digitized by



Lange v, Wagner.

injanction, for which the plaintiff was entitled to recover. HamiU
ton V. State, 32 Md. 348; Lawson v. Price, 45 id. 124; J9. £ 0. R.
Co. V. TJiompson, 10 id. 76, 88.
[Other matters omitted.]

Judgment affirmed with costs,

KoTB BY THE Repobtbr.— ThJs docision seems opposed to PviUman Palace CariJo. v.
Barker^ 4 Col. 844; s. c, 84 Am. Rep. 89; and H6bb% v. London, etc, i2|/. Co., L. K , 10 Q.
B. Ill, cited in note, 84 Am. Rep. 92.

The Hohba case was very recently followed, but criticised, by Fby, J., in McMahon \.
Field, Ch. Div., 44 L. T. (N. S.) 175. There the plaintiff hired stables of the defendant in
order to put some horses there which he wished to dispose of at a fair held in the town.
Soon after the horses arrived they were turned out of the stables in consequence of the
defendant having also let them to some other person, and as he did^ot supply the plaintiff
with other accommodation for the horses he was compelled to obtain it elsewhere. The
plaintiff claimed damages for injury sustained by the horses by being thus suddenly
turned out of the stables and exposed to the weather while he was seeking other stables
for them. Held, not recoverable. The court said : " If there had been no decision on the
point I should hold a person who breaks a contract must take the consequences of that
breach, and the fact that something which coincides with the breach produces the result
does not relieve him from the consequences. But that does not appear to be the law. The
case of Hobbay. London and Smiih-tcestem RaUtoay, L. R,, 10 Q. B. Ill, has been pressed
upon me, and I am unable to find any distinction between that case and the present.
There the illness of the plaintiflTs wife was the result in the first place of the breach of con-
tract ; secondly, of the physical condition of the wife; and thirdly, the physical state of the
weather on the night In question, on which she was obliged to take a walk. Here the
injury to the horses was the result, first, of the breach of contract; secondly, of the phys-
leal condition of the horses; and thirdly, of the state of tho weather on the afternoon In
question. In giving judgment in that case, Cockburn, C. J., after stating two hj-pothetical
cases, said (L. R., 10 Q. B. 119): * In either of those cases the injury is too remote, and I
think that Is the case here ; it is not the necessary consequence, it is not even the probable
consequence of a person being put down at an improper place, and having to walk home,
that he should sustain either personal injury or catch a cold.' If that is a correct state-
ment of the law I am bound to find that it is not the necessary and probable consequence
of the horses being turned out of the stable on a May afternoon, that in going to a neighbor.
Ing stable they should catch cold. Horses are moved, and there is nothing to show that
these horses were more susceptible to cold than other horses. Archibau), J., said (L. R.,
10 Q. B. 124) that * in the case of breach of contract the party breaking the contract must be
held liable for the proximate and probable consequences of such breach ; that is, such as
might have been fairly in the contemplation of the parties at the time the contract was
entered Into.* If that be a sound view of the law I must hold that neither the particular
condition of the horses nor of the weather on that afternoon was in the contemplation of
the parties to the contract when they entered into it. I follow that case because it is an
authority of the Court of Appeal, and not because it is to my mind a satisfactory

The Albany Law Journal says (vol. 23, p. 844): ** The Hobbe case and the Barker case
seem to us to strain the law to its extreme. Railways are not provided for the convey-
ance of the healthy and robust alone. Sick and delicate people have a right to carriage,
and are every day transported, as well as those who are strong and in health. It is not
the fault of the passenger that he is sick or delicate, or is made sick by the exposure con
sequent upon the railway company's negligence. Especially is it not the fault of the
woman that she is menstruating. Loss of business from such illness may not be recove^
able; but why is not the illness the direct and easily-foreseen result of the negligent ex*
posurer Suppose, for example, there is a railway collision and wreck, and the cars take
fire and are consumed. All the passengers easily escape except one, who is sick or has a

Digitized by


APRIL TERM, 1879. 383

Lange v.' Wagner.

wooden leg, and perishes in the attempt. Here is an * intervening. Independent cause * —
the sickness or the wooden leg. That was not the fault of the railway company. It
' appertained exclusively ' to the passengren But will any one deny the liability of the
company? The law of the cases cited will bear revision."

Writing in the Saulhem Law Review (Nov. 187j)), Mr. Thompson sayB in reference to the
Hobba case: **It is true that the taking of a false step by the passenger, resulting in a
broken limb or the sustaining of a bodily injury by htm from the overturning of a carriage,
in attempting to continue his journey to his destination, are not consequences which could
ordinarily be reasonably anticipated to follow from setting him off at the wrong station.
But that a female passenger, when compelled to walk a distance of several miles in the
middle of a wet night, because no shelter nor conveyance could be obtained at the station
to which she was wrongfully taken, might catch cold, is a consequence which, it would
seem, could reasonably be anticipated to follow such a breach of the contract of carriage,
and is stich as may be taken to have been in the contemplation of the parties as fairly
flowing from it. It must be in the contemplation of the parties that if in the breach of the
contract of carriage the passenger is placed in such a position, or is surrounded by such
circumstances, that his health is endangered, either by reason of the nature of the expos-
ure or on account of his feebleness of body, his age, or his being unaccllmated, sickness
will probably ensue, causing damage to him.**

In Waller v Midland Ot. We^ of Ireland liy. Cb., 12 Ir. L. T. 145, the defendants hav-
ing failed to provide horse-boxes, pursuant to contract, for the conveyance of horses for
sale by auction in Dublin on the day but one following, the owner was compelled to send
them by road, a distance of twenty-four miles. In order that they might arrive in due time
for the sale and for previous inspection by purchasers. The horses, which were valo*
able hunters, were in soft condition at the time of the delivery to the defendants. They
were deteriorated in appearance by the fatigue of the rood journey ; one of them was
lamed, and such as were sold realized prices below what would have been otherwise
obtained, while the others were left on the owner's hands. It appeared that If they had
been in hard-fed condition previously they would havo borne the journey without injury.
The company *s station-master was at the time of the contract aware of the intended sale,
and of the day on which it was to take place. The Queen's Bench Division held that the
injury was attributable to the default of the defendants, and not to the condition in which
the Iu>r8QS had been; and that damages awarded in consequence of the deterioration in
their selling value, occasioned by the road journey, were not too remote. **The deteriora-
tion of the horses in the present case, directly caused by the fatigue of the journey, seems
to me,** said May, C. J., **to resemble the Inconvenience which was allowed for in Hohb%
r,L/it& W. Ry, Co, rather than the expenses occasioned by the illness; ** and the court
were unanimously of opinion that the damages fell within both branches of the ruled' fined
in Hadleyf. Baxeiidale^ 9Exch. &41, SM, as being the natural and necessary result of the
journey to which the horses were subjected, and as being such as might reasonably be
supposed to have been in the contemplation of both parties at the time they made thecon'
tract as the probable result of its breach. On appeal however, 4 Ir. L. R. STO, it was held
(!re versing this decision) that tho company were not liable in damages for the entire of the
loss which the plaintiff sustained in consequence of the injuries occasioned by the road
journey, but that the measure of damages was the deterioration which the horses, if in
ordinary condition and fltto make the journey, would have suffered thereby, and the time
and labor expended on the road, such alone coming within the rule laid down In Hobbs r.
L, dt S. W. Ry, Co.

8ee, also, a series of articles entitled Remoteness of Consequential Damage, in Irish Lau
Times^ voL 16, 258, et seq. McMahon t. Fields tupra^ has very reoently been reversed by
the Omui of Appeal, but the opinions are not yet reported.

Digitized by



Culbertaon v. Smith.

(88 M(L 628.)

NegotiabU instrument — guaranty — indomement-^ttatute offraiud$,

A. made his sealed note, payable twelve months after date to the order of B.
Nine months thereafter C. the mother of A., indorsed the note in blank. B.
sued C. as upon a guaranty, and at the trial wrote above the indorsement a
guaranty, expressing as the consideration of the goaranty, the loan to A.,
and the original promise of A. that C. should guarantee the note, and forbear
to bring suit on the note for two years or more. The plaintiff also offered
parol evidence to prove the facts recited in the guaranty thus over written.
Held, that the defendant could not be lield either as original maker or in-
dorser, nor as guarantor.

ACTION on a guaranty of a sealed note. The opinion states the
facts. The defendant had judgment below.

Louis E. Mc Comas and Andrew K. Sy ester ^ for appellant.

If. Kyd Douglas, for appellee.

Alvey, J. This action is foanded upon what is alleged to be a
guaranty by the appellee of payment of a single bill^ made by

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 43 of 123)