Bowie ex rel. Ladd v. Duvall , 1 G. & J. 175 ( 1829 )

Akcheb, J.

delivered the opinion of the court.

The statute 3d & 4th Anne, ch. 9, declares that promissory notes shall be assignable or endorseable over in the same manner as inland bills of exchange are, or may be, according to the custom of merchants; and power is hy the same statute

name of the payee, because the payee having transferred his interest, can have no competency to maintain an action.

it is true, that if a note duly endorsed in full, should in the regular course of commercial dealing, come back to the hands of a prior endorser, or of the payee, it would he competent for such person as the holder to strike out the endorsement, and sue in his own name. These positions are fully maintained by the Supreme Court of the United States, in the case of Dugan vs. The United Stales, 3 Wheat. 183, where it is said “that, if any person who endorses a bill of exchange to another, whether for value or for purposes of collection, shall come to the possession thereof again, he shall be regarded as the” bona fule holder and proprietor of such bill, and shall he entitled to recovo* notwithstanding there may he on it, one or more endorsements m full, subsequent to the one to him, without producing any receipt Dr endorsement back from either of such endorsees, whoso Dames he may strike from the bill, or not,., as he pleases,”

The correctness then of the opinion of the court below, as expressed in the first bill of exceptions, must depend upon the fact, whether there was any evidence from which the jury could infer, that W. Bowie the payee and legal plaintiff in this case, was at the time of the institution of this suit, the holder of the note upon which this action was brought. The suit is in the name of the payee, and is marked to the use of Ladd 8f Co., to whom the endorsement had been made in full, before the commencement of' the suit. Either Bowie or Ladd § Co. filed the note and directed the use. If Bowie filed the note with its special endorsement, and directed the use, it was evidence not to be disregarded, that Bowie meant the assignment should be perfected. He had in fact by so doing delivered it to Ladd 4r Co.; and Ladd <Sf Co. must be considered in the absence of evidence to the contrary, as assenting to the transfer, it being for their benefit. Nor could Bowie, after the endorsement and the direction to enter it for the use of Ladd or Co., although the legal plaintiff, strike out the use, or interfere with the endorsement without the consent of Ladd fy Co. It is therefore manifest even in this view of the case, that Bowie would have parted with his right, was no longer a holder of the note, and could not maintain a suit. If on the contrary, Ladd <Sf Co. filed the note with the assignment, then the transfer was. clearly complete, and the suit should have been brought in their names, as they were legally entitled to the note, and were the holders thereof. There being then no evidence from which the jury could infer that the payee and plaintiff was the holder of the note, he was not entitled to recover upon the evidence stated in the first bill of exceptions.

The views which have been submitted of the law arising out of the first bill of exceptions, disposes of the two first prayers in the third exception.

We also concur with the court below in the opinions expressed by them on the third and fourth prayers in the third exception. If the right was in Ladd fy Co. there could be no recovery by the plaintiff on the money counts; the promise to pay must be considered as enuring to the benefit of him who had a right to the note, and if the right to the note was in Ladd Co., any promise to Bowie, was without consideration and void. Nor could the promise to pay or confess judgment, if the jury had believed in the existence of the promise, have enabled Bowie to have recovered as bolder, because the right by the endorsement was transferred to Ladd §■ Co. who are to be considered as the holders, in the absence of testimony, showing that the note had got back to the hands of Bowie.

In the second bill of exceptions, tlie court decide that no recovery could be bad by the plaintiif, because be bad not averred in his declaration, that the amount of the said note was demanded by him at the bouse of Washington Bowie, and because.no proof was given to the jury of a demand. The general doctrine that where a note is payable on demand, at a particular place, the averment of a demand and proof of notice is necessary, seems to be well established law in England, as will be seen by consulting the opinions of the twelve judges, delivered in the case of Rowe and Young, % Broderip fy Bingham, even in the case of a suit against the maker of a note. So too it was settled by that decision, that if an acceptance was made payable at a particular place, the averment of a demand and proof thereof was considered indispensable to a recovery, because in each case the place of payment according to the idea of the judges, is made part and parcel of the contract. Such, however, were the inconveniences of the rule, that Parliament, by the statute of 2 Geo. IF. ch. 78, declared that an acceptance at a particular place, should have the effect of a general acceptance, unless the acceptance was made payable at a particular place, and not elsewhere. These English decisions, which have in part been abrogated by the Legislature, as departures from commercial usage and policy, and, where, not interfered with by them, have been considered by some of her most eminent jurists, as departures from the law, [vide Mr. Justice Bayley’s and Mr. Justice .ShhoPs commenlary on Sanderson vs. Bowes, 2 Brod. & Bing. 180, j have no authoritative force here, because the cases in which these doctrines have been settled, have been adjudicated since our revolution, and are against all the analogies of the law, as was clearly demonstrated by Bayley Justice, in his argument in Rowe and Jefferys, and by Ch. J. Spencer, in Wolcott vs. Van Santvoord, 17 Johns. Rep. 250.

The Supreme Court of the United States, in the case of the United States Bank vs. Smith, 11 Wheat. 175, after adverting to the British decisions on tins question say, that a contrary opinion has been entertained in the courts of this country, that a demand on the maker of a note, or the acceptor of a bill, payable at a specific place, need not be averred in the declaration, or proved at the trial. That it is not a condition precedent to the right of recovery, and they intimate their opinion to be in accordance with such determinations. In New York, the law has been considered as settled in the same way, from the case of Foden vs. Sharp, 4 Johns. Rep. 184, decided in the year 1809, where the court say “the holder of a bill of ex- . change need not show a demand of payment of the acceptor, any more than of the maker of a note;” and in 17 Johns. Rep. 248, the court say, in commenting on this case, that such was the doctrine of the English courts at that time, and they there decide that a demand at the place where accepted, is not a condition precedent to the right to recover, and that of course it need not be averred in the declaration.

In deciding in this case, that no demand was necessary to be made, we shall contradict no decided case in this country, which has fallen under our observation. The note it must be , recollected; is payable at the house of the payee and plaintiff, and is not payable on demand there, but sixty days after date. In 11 Wheat. 171, United Slates Bank vs. Smith, it is decided, that if the bank at which a bill or note is payable, be the holder of the bill or note, no demand will be necessary, but an examination into the state of the accounts of the maker in bank, to see whether he has deposited funds, is all that is necessary to be done, to enable the party to recover. The same decision has been made in 12 Mass. 404, with the exception that no examination-of the books was required. In New York, Caldwell vs. Cassedy, 8 Cowan, 271, it was decided, that the place does not e*f'>r into the essence of the contract, unless the promise is to pay on demand at that place, and that consequently where the note is made payable at a particular place merely, no demand is necessary to be averred. This decision meets the present case. But we would not wish to be understood as deciding this case, upon so subtle a distinction, but upon the broad ground, that when the suit is against the maker of a promissory note, no demand is necessary to be averred, upon the principle, that the money to he paid is a debt from the defendant, that it is due generally and universally, that if will continue due, though there he a neglect on the part of the creditor, to attend at the time and place, to receive or to demand, that it is matter of defence on the part of the defendant, to shew that he was in attendance to pay, but the plaintiff was not in readiness to receive, which defence generally, will be in bar of damages only, and not in bar of the debt

It is staled in Sanderson vs. Bowes (14 East. Rep. 500) that the place of payment is inserted in promissory notes as a matter of convenience to the makers, for-it would he very inconvenient if they should bo compelled to answer them every where, when it is notorious that they have made provision to answer them at a particular place. If such be the practice in England, where the makers of notes have generally their bankers, with whom funds are set apart for the special payment of their notes, the construction which prevails there, upon this clause of such an instrument, may have grown out of the commercial usages of the country. But our usages here would seem to lead to a different construction, for it is a matter of notoriety, that parties to this commercial instrument generally collect them in our cities, through the medium of the banking institutions; and they are most frequently made payable there, or at a particular place, not for the convenience of the drawer, hut for the benefit of the holder, that his collection may be facilitated. And this case furnishes an illustration of the fact, for it is perfectly obvious that the home of the payee was the place of payment, here to suit the convenience of the payee, not the maker.

We concur with the court below, in every direction ^iven by them to the jury, but disagree with them in the opinion expressed in the second hill of exceptions.

JUDGMENT AFFIRMED.