Blodgett v. Jackson , 40 N.H. 21 ( 1859 )

Sargent, J.

The case finds that competent evidence was introduced tending to prove that the signatures of the defendants to the note declared on were genuine. There remained, then, two points upon which the plaintiff needed to satisfy the jury, before he could recover upon his first count: first, that there was such a firm as Whitney, Shaw, Lent & Howes; and, second, that this note was indorsed by a member of that firm. The note was offered, then, first, to prove the existence of such firm. This fact, like any other, might be proved by the admissions of the defendants, and this note was properly reád, not only as evidence of the terms of the contract into which the defendants entered, but also as evidence of the party or parties with whom the defendants made such contract; and we see no reason why the fact shown by the note that the defendants had undertaken to contract, and had, in fact, contracted with Whitney, Shaw, Lent & Howes, was not competent evidence, as against these defendants, of the existence of said firm. The first objection, therefore, was not well founded, nor can the second be any better sustained; because, if the fact of the existence of such firm be found by the jury, then, if the person indorsing the note was Lent, the member of the firm, the note was properly transferred. Farwell, the plaintiff’s witness, testified that on the day of its date a person calling himself Lent, as one of the firm of Whitney, Shaw, Lent & Howes, sold him the note, and indorsed it with the name of said firm, and that the witness had never seen snch person at any other time. The bare possession of this note by this person was competent evidence to be submitted to the jury, that he was the Lent named in the note, and of course a member of the firm, and authorized to indorse it in the manner he did. If a person has in his possession a document which ought to be in the hands of the owner, that raises the presumption that he is the right owner. .Here was a note which the evidence tends to show was genuine, payable to Whitney, Shaw, Lent & Howes; a thing of value, and likely to be in the possession of the owner. Such possession, therefore, raised a presumption of ownership. A bill or note may in many cases be in the hands of another than the true owner, but in the absence of all evidence that the bill had got out of the hands of the right owner, possession is evidence of ownership. Where a person calling himself E. S. at Cadiz, produced there a bill brought from Lisbon, and which was the property of E. S., that raises a presumption that he brought it from Cadiz; and from the mere possession it might be inferred that he was the owner, E. S. Should proof be given that the bill had been lost or improperly obtained from the owner, that would have rebutted the presumption. In this case nothing of the kind was proved. The possession of bills and notes by clerks and bankers does not raise a presumption of ownership, because in that case the known character of the holder rebuts that presumption. There is nothing in this case thus to rebut it, and therefore the evidence was properly admitted. It was competent to be laid before the jury, and, in the absence of any thing to rebut the inference arising from that evidence, we think their finding was correct. Bulkeley v. Butler, 2 B. & C. 484. The ruling of the court was correct; and even had there been doubt upon that point at the time when the ruling was made, it seems to have been removed by the evidence afterward introduced, that the party who indorsed the note was the same person with whom the defendants negotiated, and to whom they gave the note ; and the one who wrote the note, and who claimed, at the time the note was given to him, and during the negotiation with the defendants, to be a member of such firm, and when he indorsed it he made the same claim. There was, therefore, evidence competent to be submitted to the jury upon each point which the plaintiff needed to prove to make out his case; and it does not appear that any rebutting evidence was introduced, and we see no cause to interfere with the verdict, if it was found on the first count in the declaration. But there was a count for money had and received ; and a subsequent ruling of the court upon the trial leads us to examine as to whether a verdict, if rendered upon that count, could be sustained.

The court charged the jury, substantially, that if there was no such firm as that described in the note, still that the person to whom the defendants gave it might assume that name, and indorse the note by that name, and that this, in the hands of an innocent holder, would be a good indorsement. We think this ruling correct; and although this question, in this precise form, may not have been settled here, there are decisions which would seem broad enough to cover the principle involved in it. Cross v. Rowe, 22 N. H. 77; Bank of Chenango v. Hyde, 4 Cow. 567; Williamson v. Johnson, 1 B. & C. 146; Elliott v. Abbott, 12 N. H. 549; Hunt v. Aldrich, 27 N. H. 31.

We cannot see that the defendants have any reason to complain of this ruling. Such indorsement would pass the property in the note, and the plaintiff can recover upon the general count. The note is evidence of money had and received by the maker of the payee, and also of an agreement on the part of the makers to hold the money for the use of any one to whom the note may be legally transferred. Tenney v. Sanborn, 5 N. H. 557; Edgerton v. Brackett, 11 N. H. 218; Martin v. Farnum, 24 N. H. 191.

The rulings of the court being unobjectionable, the verdict must stand, upon whichsoever count it may have been found. There must, therefore, be

Judgment on the verdict.