Spencer v. Carstarphen , 15 Colo. 445 ( 1890 )

Me. Justice Elliott

delivered the opinion of the court.

This was an action upon a promissory note by the payee, J. E. Carstarphen, against Spencer, the maker. The defendant pleaded, specially, want of consideration for the note, and a general denial. The trial resulted in a finding and judgment for plaintiff. The defendant brings this appeal.

On the trial the note being offered in evidence by plaintiff was objected to for the reason that the name “ J. E. Carstarphen” was indorsed on the back of the note. The court permitted the plaintiff to erase the name so indorsed, and thereupon the note was received in evidence. The defendant objected and excepted to the rulings of the court, and assigns the same for error.

The grounds of objection, as urged by appellant’s counsel in the court below and on this appeal, are to the effect that there was a variance between the note as first offered and the complaint, that the indorsement of the payee’s name on the back of the note showed that the note had been assigned, that the title had passed out of the plaintiff, and that he could not maintain his suit upon it in his own name, he not being the real party in interest. Section 4, chapter 9, General Statutes 1883, is relied on to support these objections. The section provides in substance that promissory notes shall be assignable by i/ndors&ment thereon under the hand of the payee, so as absolutely to t/ramsfer and vest the property thereof vru the assignee.

The fact that the name “ J. E. Carstarphen ” was written on the back of the note, even if it was the genuine signature of the payee, did not operate as an assignment of the note so as to transfer the title thereto without delivery. The indorsement was in blank; no assignee was named; and, the note being in the possession of the payee and plaintiff in the action, it was evident that there had not been a delivery thereof. Hence an assignment by the supposed indorsement was incomplete, and ineffectual to divest the plaintiff of his title. 1 Daniel, Neg. Inst. § 663 et seg.; Byles, Bills, 150.

The statute relied on by appellant was borrowed from Illinois. The supreme court of that state, in cases of this kind, holds that the possession of the note by the payee is, unless the contrary appears, evidence that he is the bona fide owner and holder thereof, and that he may strike out the indorsement on the note, and maintain an action thereon in his own name without a re-assignment. Brinkley v. Going, Breese, 366; Parks v. Brown, 16 Ill. 454; Best v. Bank, 16 Ill. 608.

The rulings of the county court in permitting the erasure of the indorsement, and the reception of the note in evidence, were, under the circumstances, not erroneous. It is unnecessary to determine whether or not, under proper pleadings, defendant could have given the indorsement in evidence in Ms own behalf in connection with other facts or circumstances as tending to show a transfer of the note. Simons v. Waterman, 17 Ill. 371; Williams v. Smith, 21 Mo. 419.

The remaining objection urged for reversal is to the effect that the evidence is insufficient to sustain the finding of the court. It is unnecessary to discuss the evidence in detail. It was somewhat conflicting on the question of the consideration of the note; but, as it might reasonably be considered sufficient to sustain tbe plaintiffs side of the issue, we cannot properly disturb tbe finding of tbe trial court. Tbe judgment is accordingly affirmed.

Affirmed.