Sec. 39. Definition Of Acceptance

"The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. The acceptance must be in writing and signed by the drawee. It must not express that the drawee will perform his promise by any other means than the payment of money."28

We have heretofore noticed that the person in a bill of exchange upon whom the order is drawn is called the drawee until he accepts, whereupon he becomes the "acceptor." We shall see hereafter that in many cases there is no presentment for acceptance prior to presentment for payment. In the present chapter we are concerned only with the formation of the acceptor's contract, leaving other points in reference to acceptance to discussion elsewhere.

Acceptance consists in the expression of the drawee's assent to the order and his willingness to be bound thereupon. He then becomes the party primarily liable on the instrument, the drawer being only secondarily liable, that is to say, liable after the acceptor.

28. Uniform Negotiable Instruments Act, SEC. 132.

Sec. 40. How Acceptance Must Or May Be Made

If the holder demand, acceptance must be on the face of the bill. Otherwise he may treat the bill as dishonored. But a bill may be accepted by a separate paper in which case it will be binding only in favor of one who received the bill for value. So an absolute promise to accept a bill thereafter to be drawn will operate as an acceptance in favor of any one who on the faith thereof received the bill for value.

29. Ibid, Sees. 133-135.

An acceptance must be in writing. If the holder demand, the acceptance must be on the face of the bill, otherwise the holder can treat the bill as dishonored, that is, unaccepted. But, otherwise there may be an acceptance by way of extrinsic document, before or after the bill is drawn. An absolute promise to accept a certain described bill, or an extrinsic written acceptance of a bill already drawn is a good acceptance as to any one who on the faith thereof has received the bill for value, but not as to any one else.

Thus, C has a bill drawn by A on B. B states orally that he will pay it. B cannot be held on this oral promise. B says he will write an acceptance of it but not on the face of the bill. C may but need not receive such acceptance. If he does it is effective to bind B in favor of C or any one else who for value receives the bill on the faith of the acceptance. So also of B's promise to accept it before it is drawn.

Sec. 41. Acceptance Presumed From Reten-Tion

"Where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses 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, he will be deemed to have accepted the same."30

A case31 stating the law in this regard and construing the above provision of the Negotiable Instruments Act, reads in part as follows:

"Upon delivery for acceptance the drawee is not bound to act at once. He has a right to a reasonable time, usually 24 hours, to ascertain the state of accounts between himself and the drawer, and until expiration of that time the holder has no right to demand an answer, nor without categorical answer, to deem the bill, either accepted or dishonored; not accepted, because of the right of drawee to consider before he binds himself; not dishonored, because both drawer and drawee have the right that their paper be not discredited during such period of investigation. After the expiration of that reasonable time the holder has a right to know whether the drawee assumes liability to him by accepting, and if not, he has a right to return of the document, so that he may protest or otherwise proceed to reserve his rights against the drawer. The consensus of authority is, however, that the duty rests on the holder to demand, either acceptance or return of the bill, and that mere inaction on the part of the drawee has no effect. After expiration of this time for investigation, the drawee may, by retention of

30. Negotiable Instruments Law, SEC. 137. Illinois has omitted this section.

31. Westberg v. Chicago Lumber & Coal Co., 117 Wisconsin Reports, 589. The Wisconsin Act adds "Mere retention of the bill is not acceptance." the bill, accompanied by other circumstances, become bound as acceptor; not however by mere retention. There seem to be two phases of conduct recognized by the authorities as charging the drawee: one purely contractual, as where the retention is accompanied by such custom, promise, or notification as to warrant the holder to the knowledge of the drawee, in understanding that the retention declares acceptance; the other where the conduct of the drawee, is substantially tortious, and amounts to a conversion of the bill. This is the phase of conduct which our negotiable instruments statute * * * has undertaken to define and limit as refusal (not mere neglect) to return the bill, or destruction of it; reiterating the common law rule that mere retention of the bill is not acceptance."

This is an excellent statement of the common law rule and the reasons therefor. Some cases, however, have held that mere retention is sufficient to constitute acceptance.

Sec. 42. Acceptance Of Incomplete Bill

Drawee's acceptance may be made while the bill is still incomplete, it being completed thereafter.32

Sec. 43. Acceptance After Non-Acceptance Or After Maturity

A drawee may accept a bill after maturity, or after dishonor by non-acceptance or non-payment. If a bill payable after sight is dishonored and afterward accepted the holder is entitled to have the bill accepted as of the date of the first presentments.33

32. Uniform Negotiable Instruments Act, SEC. 138.

33. Ibid.

Sec. 44. Kinds Of Acceptance

Acceptances are either general or qualified. The holder may demand a general and refuse a qualified acceptance.34

(1) What constitutes general acceptance. Any acceptance which does not vary the terms of the bill is a general acceptance.

To this acceptance the holder is entitled. He may treat the bill as dishonored if such acceptance is refused. But if he choose he may take a qualified acceptance. An acceptance is still general though it name a particular place for payment, unless it expressly states that the bill is to be paid there and not elsewhere.

(2) What constitutes qualified acceptance. An acceptance is qualified which varies any term of the bill.

"An acceptance is qualified, which is: 1. Conditional, that is which makes payment by the acceptor dependent on the fulfillment of a condition therein stated;

2. Partial, that is to say, an acceptance to pay part only of the amount for which the bill is drawn;

3. Local, that is to say, an acceptance to pay only at a particular place;

4. Qualified as to time;

5. The acceptance of some one or more of the drawees but not of all."35

34. Ibid, SEC. 139.

35. Ibid, SEC. 141.

By custom an acceptance is not deemed to be qualified which recites a place of payment unless it further recites that it is payable only at such a place.

Sec. 45. Effect Of Qualified Acceptance

It binds the acceptor according to the tenor thereof, it discharges the drawer and previous indorsers unless they consent thereto. They do assent thereto when after notice of such acceptance, they neglect within a reasonable time to dissent to the holder.

Sec. 46. Acceptance (Certification) Of Check

Certification of check by the drawee bank Is an acceptance thereof; and charges the bank according to the tenor of the check; but certification at the request of the holder discharges drawer and indorsers.

Checks are as far as possible governed by rules which govern other bills of exchange. Acceptance of a check is sometimes termed "certification." The bank thereupon becomes primarily liable to pay the check. If at the holder's request, the check is certified, that discharges previous indorsers and the drawer, because such holder might have received payment. A certification at his request amounts practically to a deposit by him. If at the drawer's or indorser's request such drawer and indorser remain secondarily liable.