123 Neb. 317 | Neb. | 1932
This is an action at law by the holder and purchaser of a negotiable promissory note against the maker thereof and the payee named therein who indorsed the same. From a judgment in favor of the plaintiff the indorser only appeals.
The sole question presented for determination in this review is whether the words, “October 27, 1930, I hereby assign the within note and mortgage to Baldwin-Heckes Company. (Signed) J. W. Curl,” constitutes a qualified indorsement, or do they impose on Curl the liability of a general indorser. The evidence of the appellant, uncontradicted, is that, when delivered by Curl to plaintiff’s agent, this note bore only the general indorsement of the payee, “J. W. Curl,” a blank indorsement; that thereafter at a time and place unknown to the indorser, and as an act not in any manner participated in by him, the transferee wrote above the indorser’s signature on the back of the note, “I hereby assign the within note and mortgage to Baldwin-Heckes Company.” This was expressly author
In Kane v. Eastman, supra, the district court of appeals (an intermediate court in California) determined that a printed indorsement on a promissory note executed by the payee prior to the negotiation thereof in the following words, “For value received, we/I hereby transfer, assign and set over unto Charles H. Kane all my /our right, title, interest in and to the within contract/note,” constituted a qualified indorsement, not it seems because of the use of the words “transfer, assign and set over,” but because of the subject-matter thereof which is identified and described by the words “all my/our right, title, interest” of the payee. There is cited in this opinion in support "of this conclusion the case upon which appellant relies, viz., Spencer v. Halpern, 62 Ark. 595, wherein the learned supreme court of Arkansas, in construing an indorsement on a promissory note by the payee thereof in the words, “For value received I hereby transfer my interest in the within note to Isaac Halpern. (Signed) Geo. Spencer,” determined that the maxim, Expressio corum quae tacite insunt nihil operatur, was inapplicable under the facts.
Conceding arguendo the full force of the reasoning in Spencer v. Halpern, supra, in the statement that, “The declaration that the payee assigns or transfers all his right, title and interest in the paper would seem to limit in a most effective way the rights acquired by the transferee to those which the transferor had therein,” and in the absence of statutory provision thus prevent the writing from operating as a general indorsement, still it would seem, in view of the statutory provisions having some bearing thereon, as well as the difference in the facts involved, that such statement is neither applicable nor controlling in the instant case.
In this jurisdiction the terms of the uniform negotiable instruments act, as adopted by our legislature, are mandatory, and it is to be observed that Arkansas did not adopt this legislation until seven years after Spencer v. Halpern, supra, was determined. So, also, in the instant case, the language descriptive of the matter transferred by the indorsement is not limited to the “right, title and interest” of the indorser, but is “the within note,” thus manifestly purporting to transfer every right or benefit which the terms of this written instrument create or purport to create for and vest in the payee thereof. It would seem that the words “the within note” in themselves are wholly incompatible with the idea that a limitation is expressed thereby.
Then, too, the real interest of the payee or transferor of a negotiable instrument would naturally suggest the employment by him of words of limitation of his responsibilities in an indorsement thereof penned by his own hand. That situation is wholly absent in the instant case. Here, appellant’s undisputed evidence is that the indorse
Obviously what is contemplated by section 62-306, Comp. St. 1929, is the simple conversion for the convenience of the transferee of what was a general indorsement into a special indorsement. Indeed, the statute in terms expresses the limitation that the new agreement or indorsement so made shall be consistent with the character of the indorsement as originally made. “Consistent,” as defined in Webster’s New International Dictionary, includes, “Having agreement with itself or something else,* * * * accordant; harmonious; congruous; compatible; not contradictory.” Manifestly the terms of the statute last referred to contemplate that the special contract resulting from the change of the general indorsement in blank to a special indorsement shall be consistent with the obligations imposed by the original indorsement, not contradictory thereto, and shall not, in legal effect, be substantially changed thereby. The language of the indorsement in suit as changed by the transferee, under the terms of the statute quoted, certainly constitutes a special indorsement.
The safe principle applicable to this situation seems to be “that it is often desirable to express what the law would imply, in order to remove all doubt as to intention. Abundans cautela non nocet.” Broom’s Legal Maxims (9th ed.) 433. It therefore appears that the relation of the parties, as well as the facts of the transaction, indicate that the words of the indorsement in suit, under the circumstances of the case, would not justify, as a controlling canon of construction, the application of the maxim, Expressio unius est exclusio alterius, but suggest rather that the maxim, Expressio eorum quse tacite insunt nihil operatur, expresses the correct rule. Broom’s Legal Maxims (9th ed.) 431.
Without reference to the special circumstances of the instant case, but considering the language of the indorsement in suit as a general proposition only, this conclusion appears to accord with the views of the textwriters in the main. Thus, the learned author of 1 Daniel, Negotiable Instruments (6th ed.) sec. 688c, says: “The question arising in such cases is a nice one, and depends upon rules of legal interpretation. The mere signature of the payee indorsed on the paper imports an executed contract of assignment, with its implications, and also an executory
As applied to the facts in the instant case,- we are in-
It would seem obvious that, in view of the express terms of the Nebraska uniform negotiable instruments act, it cannot be said that the better reasoning supports the contention of the appellant. But an additional reason tending to sustain the action of the trial court in this case is to be found in the fact that the decisive majority of the courts of this nation have taken the view that the liability of an indorser is imposed upon one who makes an assignment upon the back of commercial paper, and that this conclusion, generally speaking, is in harmony with the provisions of the uniform negotiable instruments act as adopted in the various jurisdictions. Leahy v. Haworth, 141 Fed. 850; Maine Trust & Banking Co. v.
In view of the unanimity which prevails among the courts of the states that have adopted substantially the provisions of the uniform negotiable instruments act, it is obvious that public policy, which demands uniformity in the rules on this subject, would necessarily require conformity with the majority holding. Indeed, we are committed to the doctrine that “The negotiable instruments act (Comp. St. 1929, secs. 62-101 to 62-1710), having been adopted by this state and others of the federal union for the purpose of securing uniformity and certainty in laws throughout the country, should be so construed as to give effect to this design.” Peter v. Finzer, 116 Neb. 380.
It follows, therefore, that the judgment entered by the district court in this case is right, and is
Affirmed.