Canfield v. McIlwaine ex rel. Wood, 32 Md. 94

Canfield v. McIlwaine ex rel. Wood

32 Md. 94 | Md. | 1870

Maulsby, J.,

delivered the opinion of the Court.

This suit is brought on a due bill, made by the appellants, (defendants below,) payable to Samuel Turbutt, and by him assigned, in blank, in December, 1866, and delivered to S. O. Mcllwaine, who, in April, 1867, formed a partnership with Claudius L. Goodwin, when the due bill passed to the firm, and became part of the partnership effects. In November, 1867, McIlwaine delivered the due bill to Algernon R. Wood, for whose use the suit is brought, with the blank over the name of Turbutt filled up, “pay Mcllwaine, Goodwin & Co., or order.” The defendants had notice of the assignments. After the delivery to the cestui que use, the suit was brought. The narr. contains the money counts and also a count stating that Turbutt assigned the due bill to the plaintiffs on or about December, 1866. The plaintiffs’proof is: that the partnership between the legal plaintiffs, was formed in April, 1867; that Mcllwaine received the due bill from Turbutt, as margin on a contract for the purchase and sale of gold, to be made by Mcllwaine, as broker, for account of Turbutt, which contract, in writing, is set out; that Turbutt was indebted to Mcllwaine individually, but in what amount cannot be stated or approximated that after the formation of the partnership, Turbutt *98had a transaction with the firm and owed the firm a balance of $419.00. The written agreement is to the effect, that Turbutt was to deposit, with Mcllwaine, ten per cent on the par value of the gold to be bought for him and to keep the deposit equal to ten per cent on the par value, as the same might fluctuate at the stock exchange, whenever called upon tado so, and the due bill was assigned on account of this deposit.

For defendants, Turbutt proved that at the time of the trial he was the owner of the due bill; that he assigned it to McIlwaine, to be a margin on any gold transactions he might have with him; that he had a transaction, which resulted in a profit to him, which McIlwaine paid him; that he had no recollection of ever having had any gold transactions with McIlwaine, Goodwin & Co.; that when they failed they owed him $85 or $90, for a draft collected by them; that when he assigned the due bill to McIlwaine, the agreement was, that if he failed to make good any default, he (McIlwaine) would have the right to rely on the due bill for indemnity; that he never authorized McIlwaine to assign the due bill, except in case of default and that he never became indebted or made default.

The plaintiffs prayed the Court to instruct the jury, that if the jury found that the due bill was signed by defendants and endorsed in blank by Turbutt, and delivered so endorsed to Mcllwaine, and that the endorsement was filled up by him, and that defendants were notified of the assignment, the plaintiffs were entitled to recover and the Court, granted the prayer.

To entitle the plaintiffs to a verdict, they must show a title to the cause of action, and their title must be in accordance with the terms of the Code, which authorize them as assignees of the chose in action, to sue in their own name. Those terms are that they be bona fide entitled thereto, by assignment in writing, &c. They cannot maintain their suit at all, unless they be bona fide entitled. The instruction of the Court below is that they could recover without any reference to the bona fides of their title. It is, that if the jury find the facts enumerated, to wit: defendants’ signatures, endorsement in blank *99by Turbutt, delivery by him to Mcllwaine, filling up of endorsement by Mcllwaine and notice of assignment to defendants, the plaintiffs can recover. If there had been no proof, attacking the bonafides of the assignment to McIlwaine, Goodwin & Co., the instruction would have been sustained, because in the absence of proof the presumptions are in favor of the bonafides, — it will be presumed — and the requirements of the statute would be satisfied by the legal presumptions. And in that case, the same presumptions would have supplied the words, omitted in the expressed language of the instruction. But there is proof, which, if believed by the jury, would shew that the assignment to McIlwaine, Goodwin & Co., was malafide. The assignment by Turbutt was to McIlwaine. But, the assignment in blank authorized McIlwaine to pass it to any other party, and authorized the holder, whoever he be, to fill up the assignment to himself. The Court says in Chesley vs. Taylor, 3 Gill, 256, “Mr. Chitty, in his treatise on Bills, says, a blank endorsement gives the holder, as well as any other person to whom it may be afterwards transferred, the power of instituting himself assignee of the beneficial interest in the bill, by filling it up payable to himself, which he may do at the time of trial.” “ This familiar and established doctrine is directly applicable to the case before us. The rights of the holder of a bond or single bill, delivered and endorsed in blank are, in this respect, similar to those of the holder and endorser of a promissory note, for he possesses, by force of the endorsement and delivery, the unquestionable power, by writing over the name of the assignee, (misprint for assignor,) to make a complete assignment.” The result is that intermediate transfers, between the first assignee and any subsequent holder, who may fill up the blank endorsement with a complete assignment to himself) may take place in fact, and their conformity to the requisites of the statute, that they shall be in writing signed by the parties, will be presumed. But whilst the holder is authorized to complete the assignment on which he founds his right to sue, that assignment, so completed by *100the holder, must be bona fide or he cannot maintain his action.

In this case the holders, who exercised their right of filling up the assignment to themselves, are McIlwaine, Goodwin & Co. McIlwaine, who, by defendants’ proof, could not have, bona fide, made any other disposition of the chose in action than to return it to Turbutt, to whom, by that proof, it belonged, and who was the original assignee of Turbutt, is the same person who, as member of the firm of McIlwaine, Goodwin & Co., filled up the assignment to that firm. The bona fides of this transaction should, we think, have been put, by the instructions, to the jury.

We shall dispose, briefly, of the substance of the questions presented by the defendants’ prayers'.

The allegation of time in the seventh count of the narr., “ on or about,” is equivalent to laying it under a videlicet, and is not necessary to be proved as laid. All that was required to be proved was, that the assignment was made before suit brought, and we concur, therefore, with the Court below in overruling the. defendants’ sixth prayer.

We do not concur in the view presented by the defendants, in their seventh prayer, that the narr. should have alleged that the assignment was made for a sufficient consideration.

The consideration of the assignment was not, as such, a matter in issue between the assignee and the makers, but the bona fides of the title-of the assignee.

It is not McIlwaine, the original assignee, who seeks to recover in this suit. The legal plaintiffs are the assignees of Mellwaine. They filled up the assignment to themselves, and claim under that assignment, and they cannot recover unless that assignment were bona fide. It is the bona fides of that on which the right to maintain this suit depends, and which ought, in our opinion, to have been left, by the instructions, to the jury, on all the evidence.

Article 9, section 1, of the Code does not require, but authorizes, the assignee of a chose in action to sue in his own *101name. In this case it was transferred by McIlwaine, Goodwin & Co., by blank endorsement, to Wood. He could fill up the assignment to himself and sue in his own name, or sue, as in this case, in the name of his assignors, for his use. The contrary position, argued by appellants’ counsel, is not maintainable.

(Decided 11th February, 1870.)

Judgment reversed, and a new trial awarded.