There was evidence on behalf of the defendants tending to show that no such agreement was made as that alleged. But the issues of fact were fairly submitted to the jury, and we must assume, on this writ of error, that the jury found from the evidence that the alleged agreement was made between the parties.
Our examination must be restricted to the questions of law involved in the rulings of the court below. And the only one which, in our judgment, it is necessary to notice, is that arising upon the instructions asked by the defendant, and which the court refused to give, to the effect that the agreement in question, having been made in Missouri, and not having been reduced to writing, was invalid under the statutes of that state, and could not be recognized in Illinois as the basis of an action there against the defendants.
The statute of Missouri referred to is as follows: 'Sec. 533. No person within this state shall be charged as an acceptor of a bill of exchange, unless his acceptance shall be in writing, signed by himself or his lawful agent. Sec. 534. If such acceptance be written on a paper other than the bill, it shall not bind the acceptor, except in favor of a person to whom such acceptance shall have been shown, and who, upon the faith thereof, shall have received the bill for a valuable consideration. Sec. 535. An unconditional promise, in writing, to accept a bill before it is drawn, shall be deemed an actual acceptance in favor of every person to whom such written promise shall have been shown, and who upon the faith thereof shall have received the bill for a valuable consideration. Sec. 536. Every holder of a bill, presenting the same for acceptance, may require that the acceptance be written on the bill; and a refusal to comply with such request shall be deemed a refusal to accept, and the bill may be protested for non-acceptance. Sec. 537. The preceding sections shall not be construed to impair the right of any person to whom a promise to accept a bill may have been made, and who on the faith of such promise shall have drawn or negotiated the bill, to recover damages of the party making such promise, on his refusal to accept such bill.' 1 Wag. St. 1872, p. 214; 1 Rev. St. Mo. 1879, p. 84; 1 Rev. St. Mo. 1889, p. 253.
The contention of the plaintiffs in error is that the rights of the parties are to be determined by the law of the place where the alleged agreement was made. If this be so, it may be that the judgment could not be sustained; for the statute of Missouri expressly declares that no person within that state shall be charged as an acceptor of a bill of exchange unless his acceptance be in writing. And the statute, as construed by the highest court of Missouri, equally embraces within its inhibitions an action upon a parol promise to accept a bill, except as provided in section 537. Flato v. Mulhall, 72 Mo. 522, 526; Rousch v. Duff, 35 Mo. 312, 314. But, if the law of Missouri governs, this action could not be maintained under that section, because, as held in Flato v. Mulball, above cited, the plaintiffs, being the payees in the bill drawn by Farlow upon Hall Bros. & Co., could not, within the meaning of the statute, be said to have 'negotiated' it. The Missouri statute is a copy of a New York statute, in respect to which Judge DUER, in Blakiston v. Dudley, 5 Duer, 373, 377, said: 'We think that to negotiate a bill can only mean to transfer it for value, and that it is a solecism to say that a bill has been negotiated by a payee who has never parted with its ownership or possession. The fact that the plaintiffs had given value for the bill when they received it only proves its negotiation by the drawer,-its negotiation to, and not by, them. * * * Their putting their names upon the back of the bill was not an indorsement, but a mere authority to the agent whom they employed to demand its acceptance and payment. The manifest intention of the legislature in section 10 [similar to section 537 of the Missouri statutes] was to create an exception in favor of those who, having transferred a bill for value, on the faith of the promise of the drawee to accept it, have, in consequence of his refusal to accept, been rendered liable, and been subjected to damages, as drawers or indorsers.' The plaintiffs in error, therefore, cannotrest their case upon section 537.
We are, however, of opinion that, upon principle and authority, the rights of the parties are not to be determined by the law of Missouri. The statute of that state can have no application to an action brought to charge a person in Illinois upon a parol promise to accept and pay a bill of exchange payable in Illinois. The agreement to accept and pay, or to pay upon presentation, was to be entirely performed in Illinois, which was the state of the residence and place of business of the defendants. They were not bound to accept or pay elsewhere that at the place to which, by the terms of the agreement, the stock was to be shipped. Nothing in the case shows that the parties had in view, in respect to the execution of the contract, any other law than the law of the place of performance. That law, consequently, must determine the rights of the parties. Coghlan v. Railroad Co., 12 Sup. Ct. Rep. 150, and the authorities there cited. In this connection it is well to state that in Bank v. Gibson, 5 Duer, 583, a case arising under the statute of New York above referred to, the court said: 'Those provisions manifestly embrace all bills, wherever drawn, that are to be accepted and paid within this state; and, were the terms of the statute less explicit than they are, the general rule of law would lead us to the same conclusion,-that the validity of a promise to accept a bill of exchange depends upon the law of the place where the bill is to be accepted and paid.' Citing Boyce v. Edwards, 4 Pet. 111.
Looking, then, at the law of Illinois, there is no difficulty in holding that the defendants were liable for a breach of their parol agreement, made in Missouri, to accept and pay, or to pay upon presentation, in Illinois, the bills drawn by Farlow, pursuant to that agreement, in favor of the plaintiffs. It was held in Scudder v. Bank, 91 U.S. 406, 413, that in Illinois a parol acceptance of, or a parol promise to accept, upon a sufficient consideration, a bill of exchange, was binding on the acceptor. Mason v. Dousay, 35 Ill. 424, 433; Nelson v. Bank, 48 Ill. 36, 40; Sturges v. Bank, 75 Ill. 595; Stock-Yards v. O'Reilly, 85 Ill. 546, 551.
The views we have expressed were substantially those upon which the court below proceeded in its refusal of the defendants' requests for instructions, as well as in its charge to the jury. The suggestion that there was a material variance between the averments of the original and amended declaration, and the proof adduced by the plaintiffs, is without foundation. The real issue was fairly submitted to the jury, and their verdict must stand.
Judgment affirmed.
Mr. Justice GRAY was not present at the argument, and did not participate in the decision.
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