6 Wend. 637 | N.Y. Sup. Ct. | 1831
It is very certain that the plaintiffs cannot recover on the first or second counts in the declaration, unless they are vested with the character of endorsees. It becomes important then to ascertain what constitutes an endorsement, according to the commercial code. “Endorsement is a term known in law, which, by the custom of merchants, transfers the property of the bill or note to the endorsee, and is usually made on the back of the bill, and must be in writing.” Cunn. on Exchange Law, 43. No precise form of words is required to make a valid endorsement; the signature of the endorser alone is all that is required to transfer a note or bill of exchange, because such signature, with the delivery of the instrument, gives the person to whom it is delivered a right to it, and to recover in his own name the amount of it from the maker or acceptor. By receiving the negotiable paper in that situation, he is vested with a right to make a full endorsement over the endorser’s name. Endorsements may be made in blank, in full, conditional or restrictive. Chitty on Bills, 131. 1 Cowen, 538. The right of a person to sue in his own name oh a bill of exchange, who is not a party to it, depends upon the title which he has derived from the payee. This title is by assignment, which the common law did not recognize, but which has its force from the custom of merchants. The statute extends the custom to promissory notes. 1 R. L. 151. This same custom must be appealed to in all questions where the validity or the effect of an assignment is called in question. It directs, Ch. J. Eyre says, in Gibson v. Minet, 1 H. Black. 605, that the assignment should be made by a writing on the bill or note, appointing the contents thereof to be paid to some third person, and in respect of bills drawn, payable to bearer, that the assignment should be constituted by delivery only. The contract which the maker of a negotiable note
We are next to inquire if the memorandum on the back of the note is a check or draft on which the plaintiffs can recover under the money counts. A check or draft on a banker is defined to be a written order or request addressed to persons carrying on the business of bankers, drawn on them by a party having money in their hands, requesting them to pay, on presentment to a person therein named or to bearer, a specified sum of money. Chitty on Bills, 332. It is said in Cruger v. Armstrong, 3 Johns. Cas. 7, 66 A check, although generally received as cash, when given in payment, is in form and reality a bill of exchange. It possesses all the requisites of a bill, and has been treated as such.” Lord Kenyon said, in the case of Bohem v. Sterling, 7 T. R. 430, that at the trial of that cause, he thought there was a distinction between a banker’s check and a bill of exchange,* but on further consideration, he did not think that distinction well founded. If a draft or check is required to have the requisites of a bill of exchange, and is to be treated as such, it will be at once perceived that the memorandum on the note in this case is not a draft or check. It does not specify any payee. To make a note within the statute, it must be payable to some person, body politic or corporate, his or their os
* It' inay ‘be- useful' to confeidei: one 'or--t\yo'c$tses- wherein =ef«= forts ¡h a Ve- beeir made' ’ter con vert'1 memorandums- into* negotia-1 ble i'ristrumc'tits. The' supreme' cburt-'of'Masáacbusétls- have-decided 'that'- a'pérson ' posáesSed ■dfváh''order ‘for> the payment > of‘'rñí)ne'y to!lNo.1 ’IO'O or bearer,'addressed to «0-particulars person ias d'ralvee, could not- maintain an action- against the • person' subscribing -it •‘without shewing- he ¡came fairly-by tit-fora-valuable consideration-. - An-action wa's--brótight by the - pbdsessbr'bri' a'mbmtiraiidúm--ir) •tMése'words'y “¡Boston, 15th! May,1 1810,'T'good'-foT one hundred-;and .twenty-six dollars1 on 'de'm'a’tid1;” Signed, Gilman'& Hoyt1;- ahd-'thé-¡coUrt' held! if not susta’itiábíe. *”Parker,';C'h. J7• said -:: “=It-is not-a-nego-h tiable promissory note? y it is not:1payable to-beared; it!-is’ a':eohf fadwhich''is1 -'expropio " vigore, constitutes a¡promise- towhoniSOevei1 skal'i''produce-itd’ “i( It--rm ports ■na-promise-to! the hdrdei'-ivitboutrmv'idehcemtwas-actudlly given'-lodim/’13"ass." R.' 1-58: .--In'this -case- there -is no~ evidence? tha6 >ther manÓTáhduirr-xyas’given- to the¡plaiptifís;-land ooqsequentiy-W
An instrument that is not a bill of exchange, or a negotiable promissory note, cannot be given in evidence, under the common money counts. 10 Johns. R. 418. This obstacle to a recovery by the plaintiffs in this action would remain, even if the acknowledgment of value received in the note could be transferred to the memorandum. If “ value received” were inserted in it, still it would not be a negotiable note or draft, and consequently could not be proof under the money counts; and the declaration contains no special count on the draff. But whose acknowledgment of value received is required 1 That of the defendant. How strange would be the attempt to convert the acknowledgment of Norton, made in the note, into an implied one of Wilkeson in the memorandum. But if it should be granted that the memorandum was a valid check or draft, there would still be a fatal objection to the right of the plaintiffs to recover. If it is a check or draft, it is as a bill of exchange; and what is required in relation to the one to sustain an action on it, is required as to the other. The parties to it are the defendant as drawer, the plaintiffs as payees, and Mr. Olcott as drawee ; the ■payee cannot resort to the drawer without having given notice of the non-payment by the drawee on presentation, or at least, without shewing that there were not funds in the hands of the drawee. Now in this case there is no notice of nonpayment to the defendant, or proof that the drawer had no funds.
Judgment for defendant.