Joseph v. Salomon-Statement of Case.

plaintiff having made a case the defendant failed to produce evidence to controvert it, but really sustains it. The verdict was squarely in conflict with the evidence and the charge of the court, and a new trial should have been granted. Wilson vs. Marks, 18 Fla., 322.

The judgment must be reversed and a new trial awarded.

ISAAC JOSEPH, APPELLANT, VS. JULIUS SALOMON, AP

PELLEE.

1. The plaintiff filed six replications to the defendant's plea. The defendant demurred to them all, the court sustaining the demurrer as to five of them, and overruling as to one: Held, That inasmuch as the five replications to which the demurrer was sustained contained nothing more as an answer to the plea than was contained in the one as to which the demurrer was overruled, the judgment sustaining the demurrer cannot be assigned as error.

2. A bill of exchange drawn in Florida, payable in Georgia, the drawer being a resident of Florida, the drawce a resident of Georgia, and the payment to be made in Georgia, is a foreign bill.

3. The general rule is, that where a notice of the non-acceptance or non-payment of a foreign bill of exchange is to be proved, a protest is indispensable, and the proof cannot be supplied in any other way.

4. “Although the drawer has no funds in the hands of the drawee, yet, if he has a right to expect to have funds in the hands of the drawee to meet the bill, or if he has a right to expect the bill to be accepted by the drawee in consequence of an agreement or ar rangement with him, or if upon taking up the bill he would be entitled to sue the drawee, or any other party to the bill, then in every such case he is entitled to strict notice of the dishonor." 9 Fla., 519.

Appeal from the Circuit Court for Jackson county.

In December, 1880, the appellant, Isaac Joseph, brought his action against Julius Salomon in the Circuit Court in

Joseph v. Salomon-Statement of Case.

and for Jackson county, upon a bill of exchange drawn by Salomon at Marianna, Florida, upon J. W. Woolfolk at Columbus, Georgia, payable ten days after date, and dated December 4, 1881, in favor of the "Pioneer Stores," and subsequently endorsed to the plaintiff and appellant. The declaration alleges the making of the bill of exchange, its due endorsement by the payee to the appellant, the nonpayment of the bill when presented on the day it became due, upon the ground that the defendant had no funds to meet it, and that the defendant was duly notified of such fact.

The second count in the declaration is upon an account stated. To the second count defendant plead not indebted.

The defendant by other pleas admits making the bill of exchange, but denies that it was ever protested for want of payment, or that he had notice of its dishonor; says he had a running account with J. W. Woolfolk, "upon whom he had repeatedly and recently before drawn drafts that were honored by the said J. W. Woolfolk when he had no funds In his hands to meet said drafts, and to whom he was shipping cotton almost weekly, and at the time said draft was drawn, and at the time of the alleged refusal to pay it, there was in transit to the said J. W. Woolfolk, and consigned to him by defendant, between seventeen and twentythree bags of cotton, shipped by defendant to meet drafts which defendant expected to draw upon him as he had been doing for some time, of which fact defendant had notified the said J. W. Woolfolk by mail as usual, and had every reason to believe, and did believe, that the said draft would be honored and paid when due."

To this plea the plaintiff filed replications.

1st. Admitting that the draft sued upon was never protested, but alleging that it was duly presented for acceptance and for payment, and that it was neither accepted or paid, of all of which defendant had notice.

Joseph v. Salomon-Statement of Case.

2d. That when the draft was drawn by the defendant the defendant was largely indebted to Woolfolk, and had been notified by him not to draw any more drafts upon him.

3d. That at the date of the drawing of the draft the cotton mentioned had not been shipped, and when shipped it was through one Alexander, agent of Woolfolk, to be applied to a debt due from defendant to Woolfolk.

4th. That when the draft was drawn the defendant had no sufficient reason for believing that it would be honored and paid when due.

5th. That on the date of the draft, and afterwards until it was payable, the defendant had no funds in the hands of Wook folk or in transitu subject to be applied to the payment thereof.

6th. That the draft was given to payee for a debt due by defendant to payee at the date thereof; that when it was drawn the defendant was largely indebted to the payor, and had been instructed by him not to draw any more drafts upon him; that the cotton alleged to have been in transitu at the time the draft was drawn, and at the time. of the refusal to pay it by the payor, was applied by the payor; that defendant suffered no injury for the non-protesting and want of notice of non-acceptance or non-payment of the draft.

To the whole of these replications the defendant demurred for the reason that they "state no sufficient grounds of defence, are not responsive to the pleas, join no issue and are indefinite and immaterial."

The court sustained the demurrer to the first, second, third, fifth and six replications, and overruled the demurrer to the fourth replication.

Trial of the cause was had on the 30th day of May, A. D. 1882. The evidence was conflicting, and a verdict was found for the defendant.

Joseph v. Salomon-Argument of Counsel.

The plaintiff moved the court for a new trial on the following grounds:

Ist. The verdict is contrary to law.

2d. The verdict is against the charge of the court.

3d. The verdict is without evidence to sustain it.

4th. The verdict is clearly in disregard of the preponderance of the evidence.

The court overruled the motion for a new trial and an exception was taken. From the judgment then entered in favor of the defendant this appeal is brought.

The errors assigned are as follows:

Ist. The court erred in sustaining the demurrers to the Ist, 2d, 3d, 5th and 6th replications of the plaintiff to defendant's plea, filed May 26, 1882.

2d. The verdict of the jury is contrary to law.

3d. The verdict of the jury is without evidence to sustain it.

4th. The court erred in overruling the motion for a new trial.

J. F. McClellan and J. E. Yonge for Appellant.

1. The drawing and delivery of the draft is admitted, as well as the presentation and non-payment.

2. The defendant, as drawer, claims that he is discharged from liability because he says he received no notice of dishonor and non-payment.

3. Upon the question as to whether the defendant received notice of the non-payment, there is a conflict of testimony, the holder, the plaintiff in this case, as well as Woolfolk, testifying that they wrote to defendant giving such notice and defendant denying the receipt of such let

ters.

4. The merits of the question of notice to the defendant, as drawer, are presented as a question of law in this case

Joseph v. Salomon-Argument of Counsel.

by the replications 1, 2, 3, 5 and 6 filed by the plaintiff to the defendant's pleas, filed 26th May, 1882, to which demurrer was sustained.

From the pleadings stated it appears that the defendant drew the draft upon Woolfolk while he had no funds in Woolfolk's hands, and that by the non-payment of the draft the defendant suffered no damage. The defendant demurred to the replications setting up these facts, and the court sustained the demurrer, and this judgment of the court is assigned as the principal error.

We contend:

Ist. That the drawer of a draft is not discharged from liability by want of notice of non-acceptance or non-payment, unless he sustains injury thereby. We cite Patten vs. Newell, 30 Geo., 271. In this case the controversy was between the holder and drawer, the same as this case. The court held that the drawer not having sustained any damage was not discharged from liability for want of notice. Ibid, p. 274; also 21 Miss., (13 Smedes & Marshall) p. 11; Pack vs. Thomas, 17 Wendell, p. 94; Commercial Bank of Albany vs. Hughes, 9 Fla., 521; Pitt vs. Jones.

We contend that the proof in this case fully sustains the proposition that the defendant suffered no damage by reason of the non-payment of his draft, for by his own testitimony it appears that he is still indebted to Woolfolk, and had not the ruling of the court precluded the jury from considering the question the verdict must have been for the plaintiff. As to the plea by defendant that he had every reason to believe that the draft would be paid, we submit that the evidence fails to show a basis for such a belief, and such a belief as is contemplated must be founded upon facts such as would reasonably support such a belief.