Connell v. Bliss , 52 Me. 476 ( 1864 )

The opinion of the Court was drawn by

Appleton, C. J.

The plaintiff having a note against one Hanly, indorsed and delivered the same to Y. B. Oakes, an attorney, who commenced a suit thereon in the name of one Temple H. Emery, by his consent. After the action was defaulted, Oakes, claiming to be the owner of the note, transferred the demand with the accruing costs to the defendant for a valuable consideration, who thereupon took out execution and collected the same.

There was evidence tending to show that the plaintiff transferred and sold the note in question to Oakes, and likewise that it was left with the latter for the purposes of collection.

The plaintiff’s counsel requested the Court to instruct the jury, "that the transfer to Bliss, if actually transferred to him, did not divest plaintiff’s title to the note or judgment, if Bliss knew the note was not passed from plaintiff until long after the date of the note, or after it became due and by law dishonored.”

This request was not relevant to the issue. This suit is not against the maker. If Oakes was the purchaser of the note, and had therefore the right to transfer the same, it is entirely immaterial whether the note was overdue or not when he purchased the same. He might as well purchase a note dishonored as one not dishonored, if he chose. And, accordingly, as he made the purchase, he might as well sell the one as the other.

This request was refused, and "the jury were instructed that, if Bliss, the defendant, purchased said note of Oakes fairly, and for an adequate consideration, without any notice of any defect in his title thereto, the plaintiff could not recover ; that the fact that the note was overdue and dishonored, although it would be such notice as would let in any defence the promisor might have in an action against him, would not be such notice to defendant as to enable the plaintiff to assert his title against him.”

The suit on the note was in the name of Tenrple H. Emery ; had the present suit been brought in his name, he being the owner of the note, the instruction given might have been ‘erroneous, — because the apparent title being in him, Oakes could not as against him, have transferred the demand unless he was the actual owner of the same. The •plaintiff having indorsed the note, and the suit being in the name of his indorsee, the defendant might well presume that the plaintiff had parted with his ownership in the same, unless he had received notice to the contrary. The fact that the note was indorsed was nothing out of the usual course of business, — and prima facie it negatived the ownership of the plaintiff when the note was found in suit in the hands of his indorsee.

It has been already seen that the dishonor of the note had no tendency to affect the defendant with notice that the title was not in Oakes, when he sold and delivered the note thus indorsed and in suit in the name of the indorsee, or of some one who allowed it to be commenced and' carried on for the benefit of the indorsee. ' -

It is not perceived that the plaintiff had any interest in the costs. He was not liable for their payment. He had never paid them to Oakes. They were paid to the latter by the. defendant, — so that the plaintiff has neither interest in nor liability for the same. Exceptions overruled.

Davis, Kent, Walton, Dickerson and Danforth, JJ., concurred.