Franklin v. March

6 N.H. 364 | Superior Court of New Hampshire | 1833

P' rkkii J.

The instrument declared upon in this case is not in the usual form of a promissory note, but no particular form of words seems to be necessary to give it that character. Bayley, on Bills, 3; Chitty, on Bills, 53, Selwyn’s N. P. 395, Casborne v. Dutlon; L’d Raym. 1396, Morris v. Lee; Strange, 629, S. C; ditto, 706, Chadwick v. Allen; 9 Johns. 217, Goshen Turnpike v. Hurtin; 2 Cowen, 536, Russell v. Whipple; 7 Cowen, 337, Mitchell v. Culver.

it has repeatedly been held that the words “value received,” though usually inserted, arc not essential. 3 Kent's Com. 50; Strange, 264, Poplewell v. Willson; Ld. Raym. 1481, M'Leod v. Snee; ditto, 1556, Emery v. Bartlett; Bayley, 24; Sel. N. P. 336.

The note in ibis case show's that it is founded upon a sufficient consideration, it purporting, on its face, to have been given for money borrowed ; and “ good to R. C., or order,” is equivalent to a promise to pay R. C., or order

The counsel for the defendant has not contended, in the argument, that this is not a negotiable promissory note ; but denies the right of the plaintiff to recover, because the note was endorsed long after it was payable ; and contends that the circumstances, as between Cochran and the defendant, at the time, and before the endorsement, were such, that he could have successfully defended against Cochran in an action on the note, and that he is entitled to make the same defence against the plaintiff, who took it after it was to be considered as a discredited note.

The facts will support the position, that the plaintiff took the note under such circumstances as to put him upon an enquiry relative to its validity • and if the case had rested here, it might have been necessary to consider how far the facts stated would constitute a sufficient defence, as against the payee. But we do not find it necessary to examine that part of the case.

The plaintiff having taken the note, presented it the same day to the defendant for payment; and if the defendant had then refused to pay it, the plaintiff might perhaps have obtained the amount of Cochran in some other way.

But instead of this, the defendant told the plaintiff, that if he would wait a month or so, he would pay the note : and the plaintiff has fully complied on his part, as he waited several months before commencing this suit. In this time the circumstances of Cochran may have materially changed, and the security of the plaintiff may depend upon a recovery in this case.

Wiggin v. Damrell, 4 N. H. Rep. 69, and Albe v. Little, 5 ditto, 277, are dir ect authorities for the plaintiff, unless the other circumstances, attending the transaction between the plaintiff and the defendant, distinguish this case, in principle, from those.

The case finds that the defendant, at the time the note was presented to him, stated, that he had not supposed this was a promissory note — -that be understood, when he signed it that it was a receipt — and that lie had claims against Cochran.

But, after stating all this, the defendant closed by a promise that he would pay, notwithstanding these facts. Upon this the plaintiff relied, and the case stands therefore as if those facts had not been stated. Any defence, which those facts might have constituted, was waived, when the clefendent said he would pay, notwithstanding, and he cannot now be permitted to set them up in bar of the plaintiff’s recovery.

Judgment for the plaintiff.