SALEEBY BROS., INC., Appellant, v. BARCLAY’S EXPORT FINANCE CO., LTD., Appellee.

APPEAL FROM THE DEBT COURT, MONTSERRADO COUNTY. Argued April 30, 1973. Decided June 8, 1973. 1. To warrant the taking of a deposition by the issuance of letters rogatory, the testimony sought must be competent, relevant, and material to the issues involved in the case. 2. An acceptance of a bill of exchange, or a trade acceptance, is qualified or conditional only if it makes payment depend upon any condition, or is for only part of the amount specified, or changes the time or place of payment, and sets forth such qualification in clear and unequivocal terms. In 1964, the appellant ordered a mineral plant to make a soda beverage, from a supplier in England. The seller executed two bills of exchange on appellant which accepted them in November and December, 1964, after seller endorsed the bills to the order of appellee. When the bills matured about one year later and appellant did not pay, the appellee brought suit and recovered against appellant, apparently in 1972. The defendant appealed from the judgment rendered in the Debt Court. Appellant’s principal contention was that the mineral plant was defective, but the only evidence it could offer of not having unconditionally accepted the bills of exchange was a letter written three years after the acceptance to the appellee, advising it to hold the seller responsible for the bills. The Supreme Court held the acceptance to be unconditional and affirmed the judgment, pointing out to appellant that it had a right to proceed against the seller if it chose. J. Dossen Richards for appellant. T. Gybli Collins for appellee. 204 LIBERIAN LAW REPORTS MR. JUSTICE HENRIES 205 delivered the opinion of the Court. This case comes to us on appeal from a judgment of the Debt Court, of Montserrado County awarding the appellee � 4804.0.3, or $11,649.73 plus costs. According to the record certified to this Court, in 1964 the appellant placed an order with the firm of George S. Clayton Ltd., of London, England, for a mineral plant to make “7 Up,” a nonalcoholic beverage, at their premises on Bushrod Island, Monrovia. Prior to the shipment of the plant to Monrovia, the supplier, George S. Clayton Ltd., of London, executed two bills of exchange on the appellant, one dated November 13, 1964, in the amount of � 4765.6.0, and the other dated December 4, 1964, for 38.15.3, to be paid to the supplier for value received. � The maturity dates of the bills of exchange were October 27, and November 25, 1966, respectively, at the rate of exchange for demand drafts on London, together with all charges for collection and stamps. In the meantime, George S. Clayton Ltd., the drawer, indorsed the bills to the order of Barclay’s Export Finance Company Ltd., the appellee, or payee. The bills were transmitted to appellant, the drawee, for its acceptance. They were duly accepted and returned to appellee. Meanwhile, the plant arrived and was installed. There is some dispute as to whether the plant functioned properly or not, but, be that as it may, the bills matured, and became due for payment, but appellant did not pay the amounts due and, therefore, it was sued. The appellant did not deny its acceptance of appellee’s bills of exchange, which is the basis of this action, but it denied its indebtedness to appellee on the ground that the mineral plant which it had ordered and received from George S. Clayton Ltd., was defective, and that the bills had been accepted conditionally. On the appeal from the judgment, 206 LIBERIAN LAW REPORTS the appellant filed a bill of exceptions consisting of fifteen counts, but in its brief and argument only four of the counts were dealt with and we, therefore, deem this as a waiver of the remaining counts. Basically the appellant contended that it was illegally restricted by Judge Emma Walser from producing evidence in support of its defense, when she denied its application for letters rogatory to secure the testimony of E. G. Saleeby, a principal and material witness, and limited it in accordance with the ruling of the judge, who decided the issues of law, to the production of evidence relevant to the authenticity of the bills of exchange, their acceptance for payment by appellant, and appellant’s failure to make payment. It is our opinion that the judge did err by restricting the testimony of appellant’s witness, but the error was a harmless one since the real issue before the court did not concern the alleged defective machinery, which appellee had nothing to do with. We observe from the record that appellant had moved for continuance on February 27, 1970, April 7, 1970, March 27, 1972, and April 11, 1972, on the ground that their witness was out of the country and would be here for the trial on certain specified dates. Each request was granted, but the witness failed to appear. It seems to us that these requests were for the purpose of delaying the hearing of this matter. A careful scrutiny of the record also shows that the application for letters rogatory sought to obtain answers to questions relating to the defective plant which was not at issue, and we fail to see to what avail it would have been to the appellant. To warrant the taking of a deposition by the issuance of letters rogatory the testimony sought to be elicited must be competent, relevant, and material to the issues involved in the case. 16 AM. JUR., Depositions, � 17. According to the Civil Procedure Law: “A commission or letters rogatory shall be issued only when necessary or convenient on application and notice, and on LIBERIAN LAW REPORTS 207 such terms, and with such directions as are just and appropriate.” Rev. Code 1:13.7(2). Moreover, whether the letters rogatory shall be issued is generally regarded as a question resting in the discretion of the court. 16 AM. JUR., Depositions, � 27. Under the circumstances, since the appellant’s witness was given an opportunity to produce evidence relevant to the issues involved in the case, we do not find that the judge abused her discretion or that appellant was prejudiced by the denial of the application for letters rogatory or by the restriction of the testimony of appellant’s witness. With respect to the indebtedness, appellant did not deny that it accepted the bills of exchange and that they remained unpaid, but contended that their acceptance was conditioned upon the mineral plant not being defective. It is settled that in order to be negotiable, a bill of exchange must: “(1) be in writing and signed by the drawer; “(2) contain an unconditional order to pay a sum certain in money; “(3) be payable on demand or at a fixed or determinable future time; and “(4) be payable to order or to bearer.” 8 AM. JUR., Bills and Notes, � 866. These requirements as to form were met. The bills of exchange carried the word “accepted,” with the signature of E. G. Saleeby, and the acceptances were dated December 18, 1964, and November 25, 1964. Acceptance is necessary to render the drawee liable. If he does not accept, he cannot be liable on the bill of exchange. What words are necessary to constitute an acceptance? The usual words are “accepted,” with the date and signature of the drawee. However, the weight of authority is that the mere signature of the drawee is a sufficient acceptance. 8 AM. JUR., Bills and Notes, � 876. Acceptances are either general or qualified. A gen- 208 LIBERIAN LAW REPORTS eral acceptance is one which does not vary the terms of the bill. An acceptance is qualified or conditional if it makes payment depend upon any condition, or is for only part of the amount specified, or changes the time of payment, or positively changes the place of payment. “In order that an acceptance may be regarded as qualified or conditional, the words or language used therein must express the qualification or condition in clear and unequivocal terms, and such terms will be construed most strongly against the restriction of the acceptor’s liability. One proposing to make a conditional acceptance only cannot use general terms, and then exempt himself from liability by relying on particular facts which have already happened, even though such facts are connected with the words or language urged to impose a condition upon the acceptance. If however the intention to qualify the acceptance is clear, it will prevail.” 8 AM. JuR., Bills and Notes, � 884. Moreover, words intended to accept or qualify an acceptance must be written on the bill so as to give the payee notice of the nature of the acceptance. An acceptance of a bill may be written on a paper other than the bill, as in a letter or telegram, but it must be attached to the bill in order to give the payee or holder notice of whether the bill was accepted or not. We, therefore, find no qualified or conditional acceptance in the bills of exchange or in the correspondence exchanged between the appellant, George S. Clayton Ltd., and appellee. We find in the record a letter from appellant to appellee, dated July 4, 1967, which informed appellee that the plant was not functioning properly, and advised them to hold George S. Clayton Ltd., the drawer, responsible for the bills. Perhaps this is the conditional acceptance to which appellant was alluding, but this cannot be considered as an acceptance ; moreover, this was almost three years after appellant had accepted the bill without any LIBERIAN LAW REPORTS 209 qualifications. While it is true that the drawee is not bound to act at once upon delivery of a bill to him for acceptance, yet his acceptance, if at all he intends to accept, must be done within a reasonable time. This being so, when the drawee accepted the bills of exchange without qualification, it thereby undertook to pay according to the tenor of the bills, and it became primarily liable on the bills. If appellant contends that the machinery was defective when landed in Monrovia then it might have a cause of action against the seller or supplier of the plant. In view of the foregoing, the judgment of the Debt Court is affirmed with costs against the appellant. And it is so ordered. Affirmed.