Haskell v. Cornish , 1 Cal. Dist. Ct. 254 ( 1857 )

Norton, J.

This is m rotiosn founded on a promissory note, made by the defendants, in which th& defense set up is that the note is not •«individual promise, but was -signed by them as trastees, and on behalf of an association, The First African Methodist Episcopal Church. R appeared that Cornish tod Lewis executed this note as trustees of this aggoefctioa, and oa behalf of the 'whole board, end that they then Selivsrad it to ms Beséis, who' was to have obtained the signature of another member of the board previeras to the delivery of the note. This he failed to do, and the plaintiff, in whose possession it now is, brings this action upon it, against the two makers whose names appear.

After it came into plaintiff’s possession the defendant, Cornish, saw it and remarked, " it’s all right,” or something to that effect. Lewis does not seem to have seen or recognised the note, in. any manner, after its delivery to Harris. There is no proof, as far as he is concerned, that would raise the presumption of an implied assent on his part, for it is not shown that he ever saw the note, or heard, or knew anything about it after Harris took it for the purpose mentioned. The plaintiff introduced no evidence to prove that he was an innocent purchaser, that he came into possession of it in the regular course of trade, or that he received it for any valuable consideration whatever.

Inasmuch as the defendants did not intend that the note should be delivered until after the signing by their eo-trastee, I should hold, in the absence of all proof that the plaintiff actually was a bona fide innocent purchaser, that he would not be entitled to recover unless it could also be shown that the defendants had, in some manner, manifested their acquiescence in the form of the note, in its present condition.

There is proof of this character, as already stated, against one .of the defendants, but none against the other. If the verdict had been against both, as I at first supposed, it would have to be set aside; but as it was only taken against Cornish, it may stand.