#### Benjamin S. Compton v. James Blair.

*AccommodaMon acceptance*— Mstoppel *by-casual admission*— Indemnity *land.*

A creditor’s failure to present promptly a draft drawn in his favor, and accepted for accommodation only, does not release the debtor where the drawee was never supplied with funds to meet it, and the maker suffered no loss by the neglect; especially if after protest the maker recognized his continued liability for the debt.

Casual statements made by the holder of a draft, or on his behalf, to the effect that it has been paid, do not estop the creditor from enforcing its payment if the debtor is not actually misled by them.

A judgment debtor sought to enjoin the collection of the judgment to the amount of a draft which he had given as collateral security, but which the creditor had failed to collect. It had been accepted merely for accommodation and without funds to pay it, and the drawee had afterward failed. The suit for injunction was brought more than seven years after it had gone to protest, and it was decreed that complainant pay the amount found due on the judgment. *Held,*that the objection that defendant should have been required to surrender the draft, or, if it were lost, give an indemnifying bond, had no force, especially if raised for the first time in the appellate court.

Appeal from Monroe.

Submitted Apr. 5.

Decided Apr. 13.

Bill for injunction. Complainant appeals.

Affirmed.

*Grosvenor & Landon*and *John H. Doyle*for complainant.

The payee’s unreasonable delay to present a draft for payment makes it his own and discharges the debt: Story on Bills §§ 108-9 ; Story on Prom. Notes § 406; Chamber*2*lyn v. Delarive*2 Wils, 353 ; *Ward v. Evans*2 Ld. Raym. 928; *Dayton v. Trull*23 Wend. 345; *Brower v. Jones*3 Johns. 229; *Says v. McClurg*4 Watts 454; *Mehelm v.*Barnet, Coxe (N. J.) 87; *Shaw v. Gookin*7 N. H. 16; *Harris v. Johnston 3*Cr. 311; an indorser about to take up a protested note is discharged by honest, but mistaken information from the holder that it has been paid, if such information prevents his resorting to the maker: *Kingsley v. Vernon*4 Sanf. 361; *Gamage v. Hutchins*23 Me. 567; *Oxford Bank v. Haynes*8 Pick. 426; *Allan v. Eldred*50 Wis. 132; 10 Rep. 575.

*Willits & Critchett*and *C. A. Stacy*for defendant.

Cooley, J.

The bill in this case is filed to restrain the collection of the balance alleged to be due on a judgment, rendered in the circuit court for the county of Monroe, in favor of defendant and against the complainant in May, 1872, for the sum of $10,751.03 and costs of suit. The litigation has twice before been in this court. *Compton v. Blair*27 Mich. 398; *Blair v. Compton*33 Mich. 414.

The controversy now relates to the application upon the judgment of a certain draft, drawn by Compton, as president of the West Virginia Oil *&*Oil Land Company, on J. II. Carrington & Co. of New York city, dated July 22, 1873, and drawn at two months for the sum of $3120. Complainant claims that this draft should be applied, and defendant resists the claim.

This draft, it appears, was handed over to the attorneys who had procured the judgment, on the day it bears date, and was by them receipted with other drafts, at the time when an execution was in the sheriff’s hands and after a levy had been made. The receipt specifies that “If one or all of these drafts are accepted and paid, they are to apply, so far as paid, in satisfaction of an execution in this cause now in the hands of Philip Nadeau, the late sheriff. If any one of them is not accepted, or if any one of them is not paid at maturity, the plaintiff in this case is at liberty to take such steps as he *3may be advised to enforce tbe collection of tbe judgment in tbis cause. It being distinctly understood tbat these drafts are only collateral security for tbe payment of the judgment in tbis cause, and the ben now bad by tbe levy of execution upon tbe property of tbe defendant is in no way released or abandoned, but is beld to await tbe acceptance and payment of tbe above-described drafts.”

Tbe draft in question was accepted by tbe drawees, but when it fell due was protested for non-payment. Question is made in the case whether tbe drawer was ever notified of tbe non-payment, but tbe evidence of notice is satisfactory to our minds. It was subsequently placed in tbe bands of Judge Joseph Casey, who was principally interested in tbe judgment, and was by him forwarded to an attorney in New York with instructions to take prompt steps for cobection. Tbe instructions were not closely followed, but tbe record discloses efforts by tbe attorney to obtain payment without suit, which continued until tbe spring of 1875, when J. H. Carrington & Co. failed. Tbe reason suit was not brought is' now suggested to be, because tbe attorney bad lost the draft, a fact which be did not at the time make known to any of tbe parties.

If by tbe failure to collect tbis draft, Compton or tbe company which drew it could be loser, there would be some ground for claiming, on tbe facts so far stated, tbat tbe creditor bad made it bis own. But tbe evidence is entirely satisfactory tbat tbe draft was accepted for tbe accommodation of the drawer, and tbat tbe drawees bad no funds with which to meet it, and were never put in funds afterwards. Carrington so testifies, and bis evidence is much more fub, expbcit and satisfactory than tbat of Compton, who undertakes to dispute him. But it also appears tbat Compton distinctly recognized bis babibty for tbe amount represented by tbe draft long after it bad been protested; tbat in May foHowing be promised to give good paper in place of it, and tbat a month later be was endeavoring to procure a renewal. After tbat time there was never any offer on bis part to take it up, and never any new obbgation assumed by Blair or *4Casey to press it to collection for his benefit, if indeed it was collectible.

It is also claimed by Compton that Blair has estopped himself from now treating this draft as unpaid, by various representations made at different times by his attorneys that the draft had been paid, or that Compton need -give himself no further concern on the subject, or other words of similar import. If such statements were made and were relied upon by Compton to his injury he would undoubtedly have an equitable claim to relief. But is clear enough that Compton never supposed this draft had been paid, and never lost anything by reason of statements made by the attorneys, upon which he now relies by way of estoppel. There were undoubtedly statements made at different times by Mr. Norris and Mr. Willits, acting as attorneys in the collection of the judgment, which a stranger to the facts might have understood as Compton now claims they should be; but they were made either while the collection of other drafts was the matter immediately in hand, or at a time when the judgment was apparently satisfied by a sale which was afterwards set aside. Compton was never misled by them, for he knew quite as well as the attorneys did that the draft had never been paid. Casual remarks are not to be made to operate as an estoppel when nobody is misled by them and nobody harmed. *Ferguson v. Millikin*42 Mich. 441. The only fact Compton can claim not to have known was the loss of the draft; but as he never called for its surrender to him, he cannot claim that the loss affected his action. He might have raised a question upon this fact if he had called for the draft to bring suit; but this he failed to do, and Carrington *&*Co., who seem to have been more willing to reach an adjustment than he was, instituted suit after a time for a large sum which they claimed the Oil Company owed them.

When the court of chancery adjudged that complainant had no equities, a decree was made that defendant pay the sum found due on the judgment which was computed at $6250. A technical objection is now made to this decree, that the court should have ordered the Carrington draft *5delivered up, or, if it was lost, that an indemnifying bond be given by defendant. No doubt sucb a bond would have been ordered if defendant bad been tbe moving party; but be ah’eady bad bis judgment and Compton bad failed to make out a case for restraining its collection. It was not, under sucb circumstances, a necessary condition to tbe collection of tbe judgment that Blair should give a bond of indemnity: tbe mere dismissal of the bill without further order would bave left him at liberty to proceed in tbe collection of bis judgment. As it is now more than seven years since tbe draft was protested for non-payment, it is not likely any party to it can suffer from its non-production. And as there is nothing in tbe case to indicate that this point was ever made before, we do not think it entitled to notice now.

Tbe view we take of tbe facts renders it unnecessary to consider tbe law points made on behalf of complainant.

Tbe decree must be affirmed with costs.

Tbe other Justices concurred.