Willis v. Hobson , 37 Me. 403 ( 1854 )

§HEPLEY, C. J.

— The firm name of the plaintiffs and the firm name of Longley & Co., are proved to have been indorsed upon the note on the last day of grace, a few minutes before the banks in Boston were closed for that day. They appear to have been so indorsed, not because they were or had been holders of the note, to give it currency, but for the purpose of rendering themselves liable to pay the note to the bank, and to prevent its being protested for non-payment. It was on the following day paid by the plaintiffs to the bank, and delivered to them. It does not appear to have been transferred to them by the bank, but merely delivered to them by4he receiving teller on payment, without any communication with the other officers of the bank. The teller would have had no authority to transfer or convey any property in the note from the bank to the plaintiffs. They could have thus acquired no property in it, but by being regular parties to the paper. They did not become indorsers in the usual course of business, or by the request of the maker, or any regular indorser; and they paid it without any request from any such party. When a person, not being a regular party to a note, pays it for the honor or credit of the maker," or any indorser, without request, he does not thereby acquire a right to repayment from any of the prior parties, for whose honor he may have paid it. Story on Notes, § 453. He can no more make another his debtor by the payment of a note without request, express or implied, than lie could by tbe payment of any ordinary account.

Tbe note in this case appears to have been paid to tbe bank, not only without any request or knowledge of tbe defendant, but, according to the testimony of Benjamin Longley, at bis request, and upon tbe credit of the firm of Longley & Go.

When tbe plaintiffs agreed with him to pay it, tbe teller, as be states, was not present. There is no difference between bis testimony and that of tbe teller in this respect; while there is some difference respecting what took place afterwards, when they both went to the plaintiffs’ office, to have tbe note there paid. But there is nothing in either of their statements respecting that transaction, inconsistent with tbe testimony of Longley, that plaintiffs bad before agreed to pay it on tbe credit of bis firm. Tbe impression, or understanding of tbe teller, being but am inference or opinion of bis own, can have no weight.'

Tbe arrangement, by which tbe note became indorsed by tbe plaintiffs, appears to have been only a substitute for payment, to induce tbe teller on bis own responsibility, and at bis own personal risk, to wait for payment until tbe next day, because tbe plaintiffs’ account book with tbe bank, was not of convenient access.

By a payment under such circumstances, tbe plaintiffs did not acquire any title to, or interest in tbe note.

Plaintiffs nonsuit.

Howard, Rice, Hathaway and Cutting, J. J., concurred.