Hailey v. Falconer

32 Ala. 536 | Ala. | 1858

RICE, C. J.

The endorsement here relied on by the plaintiff is not in' the common form, bnt substantially' different therefrom. It is not blank in the form of it, but completed by the endorser himself. The main question is, what is its character and effect.

A qualified endorsement is one which does not affect “ the negotiability of the instrument, but simply qualifies the duties, obligations and responsibilities of the endorser, resulting from the general principles of law.” Any words in an endorsement, which clearly demonstrate the intention of the endorser to make it a qualified one, will have the effect to make it such. This appears very satisfactorily from the examples of qualified endorsements given in the authorities ; among which we find the following: an endorsement to A. “without recourse,” or “at his own risk; ” or “ James Atkins, with intent only to transfer my interest, and not to be subject to any liability in ease of nonacceptance or non-payment.” — Story on Prom. Notes, §§ 138, 146, and notes thereto. "Why are these given as examples of qualified endorsements ? Because the words employed in each of them, although not the same, clearly demonstrate the intent of the endorser to make a qualified endorsement — to avoid personal liability on the instrument endorsed.

It is well settled, that where there are general words alone in an endorsement, they shall be taken most strongly against the endorser. But “it is a general and a reasonable rule, that more^general words in an instrument shall be restrained by other expressions more limited in the same instrument;” and for the purpose of ascertaining the intent, every part and word of the instrument is to be considered. — Jackson v. Stackhouse, 1 Cowen, 126; Lyman v. Clark, 9 Mass. R. 235; Rich v. Lord, 18 Pick. 325; Chitty on Con. 85, and notes.

It is part and parcel of the endorsement under consideration, that the right and title transferred by it were “to be enjoyed in the same manner” by the endorsee as it might have been by the endorser. That part can no more be disregarded than any other part, if a meaning consistent with the other parts can be assigned to it. Such meaning can well be assigned to it, under the rules stated in the next preceding paragraph of this opinion. Its effect is to restrain the more general words in the other parts of the endorsement. It is special, and the special controls and limits the general. It is without meaning or effect, unless it was intended to exempt the endorser from personal liability on the instrument endorsed, by providing that the endorsee should not enjoy the right and title transferred to him, in a “ manner” different from that in which the endorser himself might have enjoyed the same right and title. The words of the endorsement, taken together, and so reconciled as to allow some meaning and effect to each word in it, naturally import no more than mere substitution and subrogation — the substitution of the endorsee for the endorser, and the subrogation of the former to all the right and-title of the latter in the note, and to the manner of enjoying that right and title.

It may be argued, that when an endorsement of a note is in blank, or in the common form, one of the legal implications from it is, that the endorsee may enjoy the right and title to the note in the same manner as the endorser might have -enjoyed them. Concede that to be so; yet be it noted, that this is only one of the legal implications from such endorsement; that there are other legal implications from it; that this single one does not impose upon the endorser any personal liability on the instrument endorsed; that one of the others does impose such personal liability conditionally. — Story on Promissory Notes, §.135. Now, when we find an endorsement, completed bj the endorser himself, and accepted in its completed form by the endorsee, which expresses only one of the legal implications from an endorsement in blank, or in the common form, and the one which does not impose upon the endorser a personal liability on the instrument endorsed, — we feel bound to decide, that the expression of that one excludes every other legal implication which might impose such liability upon him. — Webb v. Plummer, 2 Barn. & Ald. 746; Brown v. Byrne, 3 Ellis & Blackburn, (77 Eng. Com. Law Rep.) 703; Humfrey v. Dale, 26 L. Jour. Rep. 147; Q. B., reported in the July No., 1857, of American Law Register, 551. — “ Expressionfacü cessare taciturn.” — Chitty on Contracts, 24; Ogden v. Sanders, 12 Wheaton’s R. 213, 341.

Entertaining these views, we hold, that the plaintiff cannot recover upon the endorsement, by the common law, or commercial law. The only chance, then, left for him, is the law of Louisiana, where the endorsement was made. And by that law, athe transferree of a note, not endorsed, but transferred by a special assignment of the payee, written on the back of it, cannot maintain an action against the transferror. Tie has no recourse on the transferror, when the debt (as here) exists at the time of the transfer.” What we have above called the endorsement here sued on, is, by the law of Louisiana, treated as especial assignment, or transfer, written on the back of the note. Martin v. McMasters, 14 Louisiana R. 420, and the sections of the Louisiana Code there cited.

As the plaintiff relies only upon the endorsement or special assignment hereinabove considered, and as it is clear he never can recover upon it, he has not been injured by any of the rulings of the court below, even if they are erroneous; and in such cases, a plaintiff is not entitled to a reversal. — Reese v. Harris, 27 Ala. R. 301; Shehan v. Hampton, 8 Ala. R. 942; Dunlap v. Robinson, 28 ib. 100.

Judgment affirmed.