PAGE, BACON & CO., Respondents, v. ELIAS WARNER et al. Appellants

* PAGE, BACON & CO., Respondents, v. ELIAS WARNER et al. Appellants. Bill op Exchange — Release op Dbaweb. — The second of a foreign bill of exchange drawn here, payable at sight, was presented to the drawee, and payment being refused, it was duly protested. Afterwards, and before suit was brought, the first of exchange was paid to the'holder, with interest and cost of protest. Held, the drawer was released from the payment of damages for the dishonor of the second of exchange. Appeal from the Fourth Judicial District. This was an action brought by the plaintiffs for the second of exchange, drawn payable at sight, by the defendants, in, San Francisco, upon the Clinton Bank, of Columbus, Ohio,' in favor of the plaintiffs, for $4,000, and fifteen per cent, damages for its non-payment. The second of exchange was presented to the Clinton Bank, and payment refused, the 27th of August, 1853, and it was duly protested. On the 5th of September ensuing, and before the action was commenced, the first of exchange was presented to the Clinton Bank, and paid to the plaintiffs with interest and cost of protest of the second of exchange, and the bill surrendered. At the trial, the Judge instructed the jury in favor of defendants, and they found a verdict accordingly; and judgment being entered thereon, the plaintiffs appealed. F. M. Haight, for Appellants. L. Aldrich, for Respondents. Cited 15 Wend.' 76; 7 Wend. 429; 7 Johns. 442. [MAJORITY — Mr. J. Heydeneeldt] Mr. J. Heydeneeldt delivered the opinion of the Court. Mr. Ch. J. Murray concurred. Damages on foreign bills of exchange do not accrue frpm any stipulation in the contract, but are recoverable by operation of * law. They are, therefore, a mere incident to the principal sued for, and where the latter cannot be recovered, there can be no- claim for the former. It is said that where the principal sum is paid by the drawee, as he is not liable for the damages, the liability of the drawer remains notwithstanding, because the drawee has the right to pay what he is liable to pay; but the drawee, without acceptance (as in this case), is not liable to the holder of the bill for any part of it; nor does it appear that the payment here was made by the drawee. The acceptance of payment of one of the set of bills was a waiver of all claim for damages, and this, because the evidence of debt was surrendered and canceled. Bach part of a set of bills of exchange constitutes the whole of the bill. Furthermore, the claim for damages was waived, because the statute of this State declares, in express terms, that the damages shall be in lieu of interest, charges of protest, and all other charges incurred previous to, and at the time of, giving notice of non-payment. In this case, the interest and protest fee were paid and accepted with the principal. The plaintiffs, then, by the express law, are not entitled to both the charges and damages. They accepted the one, and have, therefore, beyond question forfeited all right to the other. Judgment affirmed. Cited, 1 Mo. App. 576.