#### THEODORE B. GATES, Appellant, *v.*AMOS F. ENO, Respondent.

*Bill of exchange—refusal of drawee to pay in full or redeliver bill to payee*— *liability of drawee.*

When the dealings between the holder and the person on whom a hill of exchange is drawn, show that the understanding between them is that the latter is to pay thereon the amount in which he is indebted to the drawer, and that the bill of exchange, with an indorsement thereon of the payment of such amount, is to be held by the drawee as a voucher for such payment: *held,*that by refusing to deliver the bill of exchange to the payee, the drawee does not make himself liable as an acceptor thereof under the provisions of 3 Revised Statutes (5th ed.), page 68.

Whether a builder’s order be a bill of exchange or not, *quosi'e.*

Appeal from a.judgment in favor of defendant, entered at the Kings county Circuit, on the dismissal of plaintiff’s complaint.

*Theodore B.*Gates, appellant, in person.

*George De Forest*Lord, for the respondent.

Tappen, J.:

This is an appeal from a judgment entered in Kings county on the dismissal of the plaintiff’s complaint at Circuit.

The plaintiff sought to charge the defendant with liability upon an instrument which the plaintiff claims to be a bill of exchange, and which reads as follows:

“ Brooklyn, *December*3, 1872. Amos F. Eno, 75 William street, New York.—Please pay T. B. Gates five hundred dollars, and deduct same from fourth payment on five houses on Ninth street, Brooklyn, between Third and Fourth avenue.

“Yours, etc., C. B. SKIFF.”

The defendant did not accept the order by any indorsement in writing. He made a small payment to the plaintiff, who indorsed the following receipt on the back of the instrument:

*97“ Received, December 19,1872, on within order, ninety-five dollars and seventy-eight cents, same having been indorsed'on note of O. B. Skiff, December 4, 1872.

“T. B. GATES.”

The defendant retained this instrument, with this receipt indorsed on it, as a voucher against Skiff, who had contracted to build houses for the defendant; and plaintiff was furnishing Skiff certain building materials. There being no written acceptance by the defendant, he is sought to be charged with liability under the following provision of the statute: * “ Every person upon whom a bill of exchange is drawn, and to whom the same is delivered for acceptance, and who shall destroy such bill, or refuse, within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill, accepted' or non-accepted, to the holder, shall be deemed to have accepted the same.”

At the time plaintiff obtained the instrument from Skiff, the latter was indebted to him on a promissory note for $500 ; and the money which plaintiff might realize from Eno, was to be applied on this note, which the plaintiff retained and had in his possession at the time of the trial of this action. It therefore appears that he parted with no value for the instrument on which he seeks to charge the defendant.

It appears from the testimony of the plaintiff and his witness Mr. Haviland, that they called on the defendant with this order; the defendant said that parties had filed liens against .the buildings for nearly the amount he owed Skiff, but that he would pay ninety-five dollars, being the difference between the liens and what he owed Skiff. “ We talked it over and thought it was better to accept that, indorse it on the order, an.d have that money then ; if there was anything left, Mr. Eno was to pay it on the order.”

The defendant returned to Skiff this voucher, and Skiff afterward placed it in the defendant’s possession ; and it was produced by the defendant at the trial.

The plaintiff himself testifies that the understanding when he received the ninety-five dollars was, that when the liens were adjusted, whatever the balance was, the defendant would pay him *98on account of the draft. These dealings between the parties show that the payment of the order was dependent upon contingencies; that the plaintiff dealt with the order and with the defendant upon that basis and understanding, and that the instrument was in no sense, as between the parties, a bill of exchange. And, not being a bill of exchange, the statutory liability created by the non-acceptance or non-return of such an instrument, does not apply and does not reach the defendant.

The plaintiff did not leave this order with the defendant for acceptance ; that was not his demand. He left it with the defendant as a voucher and authority to the latter against Skiff; -and it was treated as in fact it was, a mere builder’s order, whereby the owner might pay the person therein named any money accruing to his builder, to the extent named in such order. The plaintiff, having indorsed a payment of ninety-five dollars upon it, when he received that sum from the defendant, thereby authorized and justified the defendant’s subsequent retention of the order so indorsed. And the plaintiff’s subsequent demand for the order, so indorsed, does not, under the circumstances, bring the case within the statute above quoted, where a refusal to return the bill is to be deemed an acceptance.

It may be doubted whether the instrument, in all its features, constitutes a simple bill of exchange within the rules laid down and cases cited in Edwards on Bills, 139.-141; but the construction given to it, and the dealings of the plaintiff and defendant in respect thereto, as disclosed by the' testimony, clearly deprive it of the character which the plaintiff now seeks to ascribe to it. •

The judgment should be affirmed, with costs.

Present — Barnard, P. J., and Tappen, J.

Judgment for defendant upon the exceptions, with costs.

*

 3 R. S. (5th ed.), p. 68.