Bond v. Storrs , 13 Conn. 412 ( 1840 )

Church, J.

The note upon which this action is brought, was executed by the defendant and John A. Tracy, and made payable to the plaintiff, or order, three years from its date, at the Commercial Bank of Lake Erie, at Cleaveland, endorsed by the payee in blank, and endorsed in full, by Henry Seymour, cashier, to R. Chapman, Esq. The action is prosecuted by Bond, the payee, and in his name, notwithstanding said endorsements. On the trial of the cause to the jury, the plaintiff struck out all the endorsements ; and to this the defendant objected. The defendant claimed, then, as he does now, that as Bond, the payee of the note, had transferred it, by endorsement, the legal title to it was in some one of the endorsees ; and that Bond could not sustain this action, unless the note had been re-endorsed to himself.

A blank endorsement is an equivocal act, and may be filled up according to the real purpose of the party making it, if consistent with the character of negotiable paper ; or it may be struck out, even at the trial, by the plaintiff, the bona fide holder of the bill or note. Lucas v. Haynes, 1 Salk. 130. 1 Sel. N. P. 305. in notis. Morris v. Foreman, 1 Dall. 193. 2 Dall. 147. Barker v. Prentice, 6 Mass. Rep. 430. Chitty on Bills, 135. And even when an endorsement is in full, it does not conclusively purport to be for value ; it may have been for value, or for collection, for remittance, or for the accommodation of some of the parties. And it is not unfre-quent, that where an endorsement is for value, the endorser is compelled to take it up from the holder and pay it. In all these cases, and perhaps all others, where the endorser comes fairly to the possession of the bill or note again, he will be regarded, at least prima facie, as the bona fide holder and proprietor of it, and may recover upon it, in his own name, with-0ut a re-endorsement, and may strike out all subsequent endorsements. Dugan & al. v. The United States, 3 Wheat. 172. Chatauque County Bank v. Davis & al. 21 Wend. 584. Gomez serra v. Berkley, 1 Wils. 46. Callows v. Lawrence, 3 M. & S. 95. Gould v. Eager, 17 Mass. Rep. 615. Havens v. Huntington, 1 Cowen 387. Norris v. Badger, 6 Cowen 449. 3 Kent’s Com. 79. Chitty on Bills, 130. 343.

In the body of the note, the makers are thus described : “We, John A. Tracy, as principal, and Lemuel G. Storrs, as surety,” &c. The defendant Storrs now claims, that he is to be considered and treated as an endorser or surety, and cannot be charged with the payment of this note, because it was not presented and payment demanded at the Commercial Bank of Lake Erie, where it fell due.

As it regards the rights of all others but Tracy, the defendant Storrs must be holden to be a principal, a joint and several promiser of this note, and equally with Tracy is responsible for the payment of it, although it was not presented at the time and place of payment. The courts of this country, so far as we are advised, have not considered a presentment and demand, at the time and place of payment, of a note payable at a future day, as a condition precedent to a right of recovery upon it against the maker, although a contrary doctrine has been holden in England. Palmer v. Grant, 4 Conn. Rep. 389. Eldred v. Hawes, 4 Conn. Rep. 465. Ruggles v. Patten, 8 Mass. Rep. 480. Carley v. Vance, 17 Mass. Rep. 389. Frey v. Barker, 4 Pick. 382. 10 Pick. 368. Wolcott v. Van Sanlvoord, 17 Johns. Rep. 248. Caldwell v. Cassidy, 8 Cowen 271. Bank of the United States v. Smith, 11 Wheat. 171. An act of parliament has been found necessary to modify the English rule on this subject. 2 Geo. 4. c. 78.

It was incumbent on the plaintiff, at the trial, to prove the material allegations in his declaration, and especially such as were descriptive of the note on which he declared ; and of course, to prove the execution of the note by Tracy; but he was bound to prove this only as against the defendant, who alone was sued; and therefore, might prove it, by the admissions and confessions of the defendant. The defendant, by executing the note himself, adopted the language of the note, and thereby admitt ed that Tracy was a joint and several promiser with himself; and it may well be presumed, that when the defendant signed the note as surety, he knew that Tracy had already executed it as principal. Gray & al. v. Palmer & al. 1 Esp. Cas. 135. Chitty on Bills, 376. Sangster v. Mazarredo & al. 1 Stark. Cas. 161.

We therefore concur with the judge at the trial on all th« points ruled by him, and do not advise a new trial.

The other Judges were of the same opinion, except StoRrs, J. who gave no opinion, being related to one of the parties.

New trial not to be granted.