Ballard v. Burnside , 1867 N.Y. App. Div. LEXIS 156 ( 1867 )

By the Court, Boardman, J.

If the instrument sued upon is a promissory note, there can be no doubt it was sufficiently-stamped, under the provisions of our revenue law.

But it is contended, by the defendant, that the paper offered in evidence contains four contracts in one instrument, and, therefore, requires stamps for four agreéments. Such was the view, we may presume, of the presiding judge. Even if we concede that this instrument contains four several agreements, I see no reason why it should not be held good as to the first' signer, John P. Burnside; and it was offered in evidence, on the trial, against him alone, and rejected. Such seems to be the view of the English courts in similar cases. (Rex. v. Recks, 2 Ld. Raym. 1445. Gilby v. Lockyer, Douglas, 217, 218. Doe v. Day, 13 East, 241.) In these cases, the instrument was held to be good as to the first person who signed, but bad as to others, for want of stamps. But the courts have gone much further, and say that one stamp is sufficient in the following cases : when a number of persons sverally bind themselves in a penalty by one bond, conditioned that each and every of them shall perform the same matter; when a debtor compounds with his creditors, and each creditor signs the same deed, (Bowen v. Ashley, 4 Bos. & Pul. 274; 1 New Rep. 278 ;) when several mariners join in a bill of sale of their several shares of prize money; (Baker v. Jardine, Tr. 1784, B. R.) when an agreement is made by several for a subscription to one common fund, though several as to each subscriber ; (Davis v. Williams, 13 East, 232 ;) when an annuity by three is sold, one being a mere surety; (Cook v. Jones, 15 East, 237;) when several underwriters, on the same policy, all agree to refer the demand of the insured on such policy ; (Goodson v. Forbes, 6,Taunt. 171;) where an apprentice was bound for seven years, the first four with A. B., and the last three with his father, to learn different trades, (Rex v. Louatle, 8 Barn. & Cress. 249 ;) where members of a mutual insurance company, all executed the same power of attorney, authorizing the persons therein named to sign the club policies for them, (Allen v. Morrison, 8 B. & C. 565.) These cases would seem to leave no doubt that this instrument (if an agreement) required but one stamp of five cents. Any other construction would lead to the greatest danger, and .might result in the wildest injustice. The subdivision of a single instrument, to see how many separate and distinct contracts could be carved out, would be a work of great labor, requiring the most judicious care.

Whether the instrument be a promissory note, or an agreement, I am satisfied the stamps thereon were sufficient, and that the judge erred in that respect.

But it is claimed that the omission to cancel such stamp by initials and date indorsed thereon, instead of a simple cross, invalidates the instrument. But, I think, a careful reading of sections 156, 158 and 163, of the act of'congress approved June 30, 1864, under which this case is to be adjudged, will satisfy any one that the neglect to cancel will not invalidate the instrument. Such, at least, is the more prudent construction, and is approved of by 3 Pars, on Oont. 290. For the reasons which I have given, I think the nonsuit should be set aside, and a new trial granted, costs to abide the event.

[Broome General Term, May 14, 1867.

But since some of the defenses interposed will depend entirely upon the question, whether this instrument is a negotiable promissory note, or an agreement, I feel it is due (though outside of the case presented) to pass upon that question.

Story (on Prom. Notes, § 1) defines a promissory note “ to be a written engagement by one person to pay another person, therein named, absolutely and unconditionally, a certain sum of money at a time specified therein.” Other authors require no more than Story, and generally they are less precise. This instrument contains all the requisites named, unless it be a certainty as to the sum of money. If it were a joint and several liability to pay $187.50, and in other respects the same as it now stands, except the sums opposite each name, no doubt could arise. It would be conceded to be a promissory note. But is not such its legal effect, as it stands ? Each one is jointly and severally liable for the whole amount, and the only effect of the subdivision of amounts opposite each name is to determine their rights between themselves. It amounts to nothing as between the makers and the payee, or bearer. I do not consider it any more open to objection than a note payable in installments. I cannot see that it lacks any element essential to a promissory note, nor does it possess an element hostile to such instruments.

Hew trial granted.

Mason, Balcom and Boardman, Justices.]