McDonald v. Husted , 3 Ala. 297 ( 1842 )

GOLDTHWAITE, J.

The precise question involved here has never been directly before the Court, though the case of Emanuel v. Atwood, 6 Porter, 384, tends directly to support the opinion of the Circuit Court.

The principle there decided is, that it is competent for the maker of a note, to stipulate with the payee, that no advantage shall be claimed of any offset, if the note shall come to the hands of a bona fide holder by indorsement.

The vice of the argument of counsel, consists in considering the stipulation in this note, as confined to the Bank, when in truth it is general. The maker stipulates that the note shall be negotiable, and also payable, at the Bank. If by the contract, it was intended only that the Bank should be benefited, ■the intention would have been more clearly expressed by other terms.

A very slight change in the terms of this contract, will show very clearly, that the parties could only have intended to make the note negotiable generally, and not specially. If we strike out the Bank, and insert the store of A. B., as the place where it is to be paid, no one would suppose it should also bo negotiaed to A. B., to preclude the maker from insisting on an off-set against any other bona fide holder. We cannot conceive why any other inference should be drawn in this-case, because the note is payable at a Bank..

We are entirely satisfied that this note must be construed as an agreement, to waive the statute in favor of any bona fide indorsee.

Let the judgment be affirmed»