19 Mo. 106 | Mo. | 1853
delivered the opinion of the court.
From the statement of the facts in this case, several important questions arise, which it becomes necessary for this court to notice. There is no doubt that the bill of exchange on which the suit is brought, was negotiated between Wallace Sigerson and Timothy S. Goodman & Co., brokers at Cincinnati, sometime in 1847, as collateral security, and the present plaintiff being one of that firm, is affected with all the notice of the transaction that the firm could be; for it is to be seen, that the firm of T. S. Goodman & Co. sent the bill out to E. W. Clark & Bros., at St. Louis, for sale, and one of the firm of
Here, then, is a creditor extremely anxious to get his debt either paid or secured : he urges the debtor by every possible exertion to secure it. His debtor is known to be much embarrassed, utterly unable to pay his debts. This debtor leaves a bill of exchange for five thousand dollars, payable in four months, with blank date, with this creditor ; leaves an instrument in writing, authorizing the creditor to fill up the date ; it is not done however. Afterwards, this same debtor leaves the bill of exchange, then with the blank date filled up, as collateral security for a pre-existing debt. Can it be said that the holder has given value for this bill under such circumstances ? Can it be said that there are not circumstances here sufficient
There is another ground of defence in this ease, which destroys the plaintiff’s right to recover, if it be true. That is the ante-dating of the bill. There can be no doubt that the bill was passed as collateral security only to Goodman & Co. either on the 12th or on the 18th of October, 1847. The 18th is the date of the entry in the bank book of the firm of Goodman & Co., made by the clerk ; that then is the day the bill is perfected and negotiated, and by the terms of the bill it has four months to run. Now it is not competent to shorten this time by ante-dating. This must have been well known to Goodman & Co. ; they knew the day the bill was passed to them; they could see from its face the purport of credit, four months from date, and the date must, from necessity, be when the bill is negotiated. Now, though it may have been in their hands a blank, long before it was passed to them as collateral, this does not authorize the date to be put some thirty days back, to give it the effect in their hands of a three and not a four months’ bill. They cannot but know the time when they thus obtained the
In 17 Wend. 221, it is said by the court, that the holder may put the blank paper in any form which shall accord with the intent of the names, either as makers, drawers, payees or endorsers. It is the intent of the parties, manifested by the face of the blank bill, which must control the holder. He cannot do violence to this intent.
In 5 Dana, 259, it is said by the court of appeals of Kentucky, if a sum and date were written on the paper, when signed and delivered, with the intention that it shall be filled up with that sum and that date, and with no other sum or date, and if, without authority, that sum and date be torn off, and a larger sum and earlier date inserted, the note, “ as sued on,” is not, in judgment of law, obligatory as the act of the apparent obligors.
Story, on Promissory Notes, says : “ But it is very common for persons to sign their names in blank to a paper for the purpose of having a promissory note written over it, and in such a ease, the note, when written, will bind the party, if done by a person properly authorized, in the same manner and to the same extent and from the same time, as if it had been originally filled up before the signature wras made.” Story on Promissory Notes, p. 13, sec. 10.
In the case of Montague v. Perkins, cited by the plaintiff’s counsel, from the Law Reporter for October, 1853, Jervis, C. J., says: “ A person by handing over to another his blank acceptance, gives him the opportunity of filling it up to the
Apply this doctrine to the bill in this case, and it will be seen that the time of u four months” appearing on the face of the bill, the authority to fill it up must be restrained as to time. It cannot be construed into power to make a four months’ bill on its face, though blank as to date, become a bill of less time, by ante-dating it. The intention of the acceptor is plain, that he accepts only a bill at four months, when negotiation is completed, and this four months on its face is notice of this intention to all persons who see it in its blank form. The testimony shows that, in this case, this bill was in the hands of Goodman & Go., with its blank date ; that the bill was afterwards filled up. Now, if it was filled by ante-dating, when the plaintiffs, that is, Goodman & Co., received it as collateral security, it must have been known to them, and they must be held to be conniving at this imposition on the acceptor.
In the nature of things, it is impossible for a prudent, careful man to shut his eyes to the circumstances surrounding this whole transaction with Wallace Sigerson and the bill, make no inquiries, and take the bill in the fair and usual course of business. But a man catching at every chance to save himself never inquires, so he can obtain collateral security, about the fairness of the transaction; he gives nothing for it: he risks nothing for it: then, common sense and common honesty unite in saying he shall take it, with the defences the other parties have against it in the hands of the original holder and party. We do not say that a bill of exchange, passed to a person in the payment of a pre-existing debt, would be liable in his
In regard to the ante-dating of the bill, see Tate & Hopkins v. Evans et al., 7 Mo. 419. Authority was given by letter signed by Evans & Dougherty to J. S. Arnold to draw on them for an amount not exceeding $1500, at four months. This was dated 28th November, 1839. The bill of exchange was drawn on 23d December, 1839, and ante-dated 28th November, 1839, and the plaintiffs took the bill on the faith of the letter of Evans & Dougherty. The court below, from this statement of facts, found for defendants, and this court affirmed the judgment. Here the ante-dating rendered the bill void. Authority to draw at four months means four months from the time the bill is drawn. A bill at four months on its face, with blank date, is still to be four months from the time of its negotiation.
The instructions given by the court below did not put the law of this case before the jury. The court takes up a part of the case, and in effect says to the jury, these facts will not authorize a verdict for the defendant, and then the balance of the case is disposed of with similar effect. The instructions asked by the defendant in regard to the ante-dating of the bill, and in regard to the collateral security without consideration, ought to have been given.
The judgment of the court below is reversed, and the cause remanded,