93 Iowa 187 | Iowa | 1895
This is another case where the unsuspecting hlais been imposed upon by the patent-right swindler, and, in its facts, is somewhat similar to the case of Bank v. Zeims, Ante 140, 61 N. W. Rep. 483. In this case the patent was on a water heater or feed cooker, and in the Zeims case it was on a fence. The lower court made a finding of facts from, which he drew certain conclusions of law, which were as follows: “(1) That the draft in controversy was obtained of the defendant through fraud and misrepresentation of the payee therein, Thos. E. Hall, and is wholly without consideration. (2) That the draft contained the words ‘with exchange/ and, by reason thereof, is not a negotiable instrument. (3) That, the draft not being negotiable, the fraud and failure of consideration can be pleaded against it in the hands of this plaintiff. (4) The plaintiff, holding the draft, is subject to the same equities and defense that the original payee would hold .it The-court is not called upon
The following is a copy of the draft upon which the action is predicated:
There was ample testimony to sustain the findings of the court below that the draft was obtained through fraud and misrepresentation, an>d was and is wholly without consideration. Indeed, counsel do not challenge these findings. The error of the court, if any, is in his conclusions of law. The appellant contends that the draft is a negotiable instrument, and is not subject to the defenses lodged against it in the hands of a bona fide holder; while the appellee insists that it is not negotiable, and therefore subject to these defenses, because of uncertainty in the amount to be paid, for that it includes “exchange.” It is to be regretted that this question, which is of so much moment to the business interests of the country, is in so unsettled a condition. If there is any branch of the law which
“A bill of exchange is an open letter by one person to a second, directing him in effect to pay absolutely, and! at all events, a certain sum of money, therein named, to a third person, or to any other to whom that third person may order it to be paid; or it may be payable to bearer, and to the drawer himself.” Daniel, Neg. Inst., section 27. And it is among the fundamentals that such an instrument must be certain as an engagement to pay, as. to> fact of payment, amount to
The decisions cited in support of the negotiability of such instruments are all based upon one or the other of the arguments we have attempted to answer. Some of them, however, we do not regard as authorities for the position they are cited to sustain. In the case in 9 Mich, there was a strong dissenting opinion by Justice Campbell, which we regard as stating the better law. In addition to this, the note in that case was dated in New York, and payable in New York, “with current exchange on New York.” The words quoted were superfluous and surplusage. The court correctly decided the case, but, to' our minds, gave a wrong reason. See Hill v. Todd, 29 Ill. 101, and Clauser v. Stone, 29 Ill. 114, which are directly# in- point on this last proposition. The case in 15 Mich, simply followed the one in 9 Mich.,
It is further insisted that the clause is similar in its nature to a stipulation to pay an attorney’s fees for collection, and that, as we have held a note with such a stipulation negotiable, a fortiori, should we hold the bill in suit negotiable. The distinction between the two provisions is accurately pointed out in the case of Sperry v. Horr, supra. In that case it is said: “The agreement for the payment of attorney fees in no sense
Lastly, it is insisted that our statutes have changed the rules of the law merchant. The sections of the Code relied upon are as follows:
Section 2082: “Notes in writing made and signed by any person promising to pay to' another person or his order or bearer, or to' bearer only, any sum of money, are negotiable by endorsement or delivery in the same manner as inland bills of exchange according to the custom of merchants.”
Section 2085: “Instruments by which the maker promises to pay a sum of money in property or labor,
The first section is a re-enactment of the1 statute of Anne, before referred to, giving to promissory notes the same character as bills of exchange under the law merchant. It has no application to this case. Section 2085 has been in force ever since 1851, and it has
We think the lower court was right, both in its findings of fact and conclusions of law. — Affirmed.