40 N.H. 21 | N.H. | 1859
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
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.
Judgment on the verdict.