Jose A. Pesant, Appellant, v. William C. Pickersgill, Survivor, etc., Respondent

Jose A. Pesant, Appellant, v. William C. Pickersgill, Survivor, etc., Respondent. (Argued April 1, 1874; decided April 7, 1874.) Plaintiff’s assignors sold to defendant a bill of exchange for £3,000, on Liverpool. On presentation thereof acceptance was refused, and, having been protested for non-accept- * anee, it was returned to defendant. The drawers having been charged by due notice, were applied to “ to retire the bill or give security for its payment at maturity.” An arrangement was thereupon made, that defendant should send the bill back to Liverpool, the drawers agreeing that upon again being presented it would be accepted as of the date of the original presentation and would be paid at maturity. The drawers gave their check to defendant for $2,000 as security, which was paid on demand. The evidence tended, in some degree, to show that the arrangement involved a waiver of defendant’s claim for damages on protest for nonacceptance,' in case the bill should be accepted and paid. The bill was accordingly sent back, was accepted as agreed and paid. The drawers then applied for repayment of the $2,000. Defendant claimed to retain the statutory damages of ten per cent on protest for non-acceptance, and offered to pay the balance only. This action was brought to recover the $2,000. On the trial, at the end of plaintiff’s case, these facts being disclosed, defendant moved for a dismissal of the complaint, upon the ground that upon the protest, return of the bill and notice, the amount payable by the drawers by force of the statute became the amount of the bill at the current rate of exchange, with ten per cent upon its face as damages, and that no consideration was shown for the release or relinquishment of any portion of that amount. This motion was granted. Held, error; that the ground of the motion necessarily implied a relinquishment or waiver of the claim for damages; that what was done and agreed to by the drawers was something different from that imposed upon them by the law as a duty upon return of the bill protested, and was a sufficient consideration to sustain the whole agreement, upon the part of defendant, including the waiver. A. Dickinson for the appellant. Joseph Larocque for the respondent. [MAJORITY — Johnson, J.,] Johnson, J., reads for reversal and new trial. All concur. Judgment reversed.