James v. Davis ( 1884 )

Mr. Justice James

delivered the opinion of the court.

This action was brought upon a promissory note of five hundred dollars, as follows: “ Ninety days after date I promise to pay to Henry M. Dellinger, or order, five hundred and thirty-two dollars for value received, payable at the Bank of Washington, with interest at the rate of seven per cent, per annum until paid. (Signed) Robert S. Davis. (Indorsed.) Henry M. Dellinger.” and “protested' for nonpayment.”

To that was appended an affidavit made by the plaintiff, in the following words: “I, Charles A. James, do swear that I am cashier, of the Bank of Washington' and plaintiff in this action,. That the plaintiff’s cause of action is the promissory note sued on and filed with the declaration attached hereto; that the defendant Robert S. Davis is the-maker of said note, and that the defendant Henry M. Del-linger is the payee and indorser thereof; that said note was discounted by the Bank of Washington for full value, before the maturity thereof, in the ordinary course of business ; that said note was duly presented for payment on the date of its maturity at said bank, where, on its face, it is made payable, and was not paid, whereof said indorser was forthwith duly notified; that the amount of said note, five hundred and thirty-two dollars, is justly payable by the defendant to the plaintiff, with interest as claimed in the said declaration, exclusive of all set-offs and just grounds of defence.”

The defendant made an affidavit setting up a defence, but the court, under the seventy-third rule, holding that the affidavit of the plaintiff was sufficient, and that the affidavit of. defence made by the defendant was sufficient, refused to enter judgment on the note.

The question first to be considered is, whether the affidavit of the plaintiff is sufficient; and if it is- not, it is unnecessary to consider the affidavit of defence. It is well-settled law that the holder of a note, even where he is in point of fact the agent for the owner, may sue upon it in his own name. The cashier of the Bank of Washington^, if the holder, could sue in that manner. But in his affidavit he states that the note was discounted by the Bank of Washington, and there his affidavit stops, so far as respects-the question of holder. He does not state, in addition to that, that after tbe Bank of Washington became the holder,, he succeeded as holder. In other words, the affidavit makes-a case up to the point at which the bank was the holder, but adds no facts to show that the plaintiff afterwards- became the holder. It makes the case of an agent suing on a promissory note held by his principal, which cannot be done. The plaintiff must sue as holder, although he be only agent.

•We have not seen much merit in this matter, but we have been obliged to- be so strict heretofore- in the application of the seventy-third rule that we do not feel at liberty to depart from the course that the court has adopted. It is a rule which withdraws cases from the jury, and we have constantly decided,- that all of the facts making' a case must be set up in the affidavit, so that if they are not contradicted by an affidavit from the other side, the necessity of a jury trial is wholly done away with. Here we find that the affidavit leaves the plaintiff in the possession, not being the holder, of this note, because he has not shown that he is. We feel compelled to adhere to our former decisions in regard to the requisites of the plaintiff’s affidavit under this seventy-third rule, and must therefore refuse judgment, and affirm the judgment of the court below.