Chappell v. Bissell

10 How. Pr. 274 | N.Y. Sup. Ct. | 1854

T. R. Strong, Justice.

In my opinion, the complaint is sufficient, both under § 162 of the Code, and independent of that section. It alleges the making of the note, which includes delivery to the payee;—(Churchill agt. Gardner, 7 Term Rep. 596; Russell agt. Whipple, 2 Cow. 536;)—gives a copy of the note, in which ££ J. Chappell ” is named as the payee; and avers that there is due to the plaintiff, on the note, a sum named, for which, with interest, the plaintiff demands judgment. Here is a full compliance with § 162 referred to; and also with subdivision 2 of § 142. It must be implied, in support of the pleading, that “ J. Chappell ” is the plaintiff, as much as it would be that££ James Chappell ” and the plaintiff are identical, if the full name had been given as' payee; The production of the note in evidence, by the plaintiff, ivould clearly be sufficient evidence of title without endorsement; it would be presumed, from his possession of the note, and the similarity of the name therein to his, that the plaintiff is the payee;—(Forman agt. Steblins, 4 Hill, 181;)—and the same thing should he intended, and regarded as impliedly alleged, from the pleading containing the facts raising such a presumption. The name, “J. Chappell,” may mean the plaintiff as much as “ James Chappell.” It may mean another person, as “ James Chappell ” might. But it will he construed, in like manner as “ James Chappell ” would he, to mean the plaintiff, in order to sustain the complaint. (Wyatt agt. Aland, Salk. 325; King agt. Stevens, 3 East. 244.) From the plaintiff suing on the note, it must he assumed, so far as the pleading is concerned, to he in his possession.

The plaintiff must have judgment on the demurrer.