Franklin Bank v. Freeman , 33 Mass. 535 ( 1835 )

Putnam J.

delivered the opinion of the Court. Was Drake a competent witness ? It seems to us, that he was not interested in the event of this suit. If the plaintiffs si ould recover, it will be for their own use. If the plaintiffs should fail, and if they should sue the witness upon his bond for misconduct in his office of cashier, this verdict could not be given in evidence for or against him. The plaintiffs would be required to support their action, and the defence would ae. sustained, by other evidence. The witness, from his connexion with the plaintiffs, may have strong wishes that they should recover, which might be a proper subject of remark to the jury, in regard to the credit which they should give to his testimony ; but we are satisfied, that his competency is not affected by any supposed liability upon his bond to the plaintiffs in another action. 1 Phil. Evid. (Dunlap’s ed. 1829,) 36, and notes, where this subject is examined, and many cases collected.

Then the question is, whether the defendant is liable upon the checks produced by the plaintiffs. If they are what are called memorandum checks, the defendant is liable, notwithstanding they were never presented to the bank upon which they were drawn, for payment, and notwithstanding the plaintiffs have not made a demand of payment before the action was commenced. That this is the meaning of memorandum checks is proved by all the evidence in the case. It is a rule of business perfectly understood in this commercial community ; too well established to be questioned. A memorandum check is a contract by which the maker engages to pay the bona fide holder absolutely, and not upon condition to pay if the bank upon which it be drawn should not pay upon presentation at maturity, and if due notice of the presentation and non-payment should be given. The word “ memorandum ” written or printed upon the check describes the nature of the contract with precision. It is an express waiver, on the part of the maker of the check, of any objection against the claim of a bond fide holder, that it had not been presented for payment, or if it were presented and not paid, that he had had no notice of the nonpayment by the bank therein named.

Then it is to be considered whether these are memoran- • dum checks. It is proved, that they are now in the same form and condition as they were in when they were signed by the defendant. Whatever may be the legal effect of the paper, it was written and prepared by the defendant himself. The erasure of the word “ North,” and the insertion of the word “ Market,” before the word “ Bank,” were made by the defendant before he signed the papers. And it is of no consequence, that there was an erasure in the paper, if it were made without fraud, and before signing. It is argued for the defendant, that the erasure of the word “North,” and the insertion of the word “ Market,” indicates clearly the intent of the maker, that the checks were to be presented to the Market Bank for payment, and therefore that the defendant may legally and rightfully avail himself of the neglect of the plaintiffs (who were holders) in not presenting the same accordingly ; especially as it is proved in the case, that Freeman’s checks, for the amounts for which these are drawn, would have been paid by the Market Bank, if they had been presented when they became due. Why (it is asked by the defendant’s connsel) did the defendant strike out “ North ” and insert “ Market ” before the word “ Bank ” ? We think this question may be answered by another, viz. why did the defendant write the word “ memorandum,” or “ Memo.” upon the face of the check, unless he intended to characterize the check accordingly ? The construction of the paper, as it was signed, is for the Court. We are to give a meaning and effect to all the words employed ; and we cannot think that any other meaning can be ascribed to that word, than that which we have suggested. We are not at liberty to suppose, that it was written there without meaning. On the contrary, we are satisfied, that it was placed there as an admission or declaration on the part of the maker, that he would pay the checks absolutely and unconditionally, distinguishing them, as memorandum checks, from other checks which were to be presented for payment.

Under this view of the subject, we place no reliance upon the promises which the defendant made after the checks became due. If the undertaking of the defendant had been conditional, and not absolute, his promises under an ignorance of the facts (if such were the truth of the case,) would fall within the case of Garland v. Salem Bank, 9 Mass. R. 408. If the case were put upon that ground, the cause should be submitted to the jury, to find whether or

no the defendant made those promises under an ignorance of the fact, that the checks had not been presented, &c. His conduct and promises after the checks became due, would be perfectly consistent with his liability, if the undertaking were absolute and not conditional. We think, for the reasons before suggested, that taking the papers as they were written and prepared, they are to be construed as memorandum checks, and subject the defendant to all the liabilities created by such paper.

It is not suggested, that the plaintiffs are not bond fide holders of the checks.

It is therefore the clear opinion of the- whole Court, that the defendant is liable to this action, notwithstanding the checks were not presented to the Market Bank, and notwithstanding no demand was made upon the defendant before the action was brought; and that judgment shall be entered accordingly for the plaintiffs.