11 Ala. 889 | Ala. | 1847
According to the principles of mercantile law, a bill or promissory note payable to a certain person or his order, could only be transferred by indorsement, so as to enable the holder ‘to maintain an action thereon in his own name against the previous parties. A mere assignment of such paper without an indorsement, will invest the holder with the same rights only, as he would acquire upon an assignment of a bill not negotiable; and if the beneficial interest be transferred, but there has been no indorsement, the action must be brought in the name of the payee. [Story on Bills, 222; Chitty on Bills, 9th Am. ed. 252; Gibson v. Minet, 1 H. Bla. Rep. 605; Pearse v. Hirst, 10 B. & C. Rep. 122; Peacock v. Rhodes, Doug. R. 633; Andrews & Bros. v. McCoy, 8 Ala. Rep. 920, 927.]
It is declared by a statute of this State, that all writings for the payment of money, or any other thing, may be as
From this view of the law, it is entirely clear, that the legal title to the notes in the hands of Mr. Brocchus, did not pass to the plaintiff by the indorsements on the receipt. The assignment of the notes, as evidenced by the defendant’s in-dorsement on the receipt, did not authorize the assignee to hold the makers liable to him ex direcio, though .in equity it conferred all the title which the assignor had. He might have controlled their collection, received the money, settled with, or released the makers, subject to any lien of the attorney. The indorsement of Mr. Brocchus recognizes the act of the defendant, ^promises to pay the proceeds of the notes, when collected, on account of the assignee to Messrs. Simpson & Co., and look to the assignor to pay the costs of collection.
The contract then between the plaintiff and defendant is not analagous to an indorsement that is, it does not prima facie impose upon the assignee the necessity of adopting the same measures as are necessary to charge an indorser. It may be conceded that whenever it was shown by extrinsic proof that the defendant was indebted to the plaintiff, and that the receipt was indorsed with the view of furnishing from the proceeds of the notes, the means of extinguishing this indebtedness, the presumption would arise, that if the notes were unproductive, then the assignor would be chargeable upon the original consideration. But this presumption would be a mere inference of fact, and might be repelled or entirely removed by countervailing proof. No rule of evidence. would be violated by its admission — there is ho writing indicating the contract between the parties, which would be contradicted, added to, or varied. The evidence then, that the notes were assigned without recourse, or that the defendant should stand discharged from his indebtedness, although the plaintiff failed to realize the amount of them, serve but to show what was the contract between the parties. In the absence of a writing showing this, by agreement of the parties, or by legal intendment and conclusion operating upon a
