Harriman v. Sanborn

43 N.H. 128 | N.H. | 1861

Nesmith, J.

The order in this case has many of the requisites of a negotiable note or bill of exchange. It is payable to J. Harriman or bearer, and is a direction for the payment of money. It has the want of the words “ value received.” These words may be omitted, and proof furnished aliunde to supply a good consideration, if it has the other qualities necessary to a bill of exchange. These words are ordinarily inserted both in a bill of exchange or check for the payment of money. Their absence is not conclusive against it, but creates suspicious circumstances, to be weighed in forming a judgment as to the meaning and intent of the paper. So are the words constituting the concluding phrase of the order, namely, “and this shall be your warrant for so doing, and good as my receipt for the said money,” also unusual in bills of exchange, and indicate that it was a mere authority conferred to receive pay, and to receipt for the money, and nothing more. This order can lie regarded as no more than a mere authority to deliver a specific parcel of money, “ being the money that came from Albert A. Bailey to me.” It was not to pay the sum of $55, at all events, but only the specific money received of Bailey. Here was a mere authority conferred upon the drawee without an interest. There can be no presumption in favor of the payee that he has any interest in the order. He must be regarded as the mere servant of the drawer, and his authority is revocable at any moment, and the drawer is authorized to call for and receive the money at his pleasure, except so far as he may have bound himself by his own acts. In this instance, Fitts Geralds having received the money himself, the defendant was under no further responsibility to any body. The order could not be regarded as accepted by the defendant. Fitts Geralds countermanded or revoked his authority before acceptance, and Sanborn and Harriman had due notice or knowledge of the revocation.

“A draft that has not been accepted, and a bank check, should not be paid after notice from the drawer countermanding the authority.” Edwards on Bills 546, and authorities there cited.

There is still another legal, and perhaps more technical objection, but equally fatal to the plaintiff’s right to maintain this action. In order that a bill of exchange be good, it must be for the payment of money only and absolutely, and not contingent, either as to amount, event, fund, or person. Chit. on Bills 132. This is on account of certainty and precision in mercantile affairs. Ibid. 137. This order being regarded as payable out of a particular fund, or as the delivery of a particular package of money, is not negotiable, and the plaintiff can not therefore maintain this action. 3 Kent’s Com. 94; Chitt. on Bills, note 10; Reeside in Error, 2 Wheat. 233; 2 Blackf. 47; Cushing v. Satterlee, 6 Cow. 108; Jeremy v. Hale, 1 Str. 595. The rule is uniform that whenever the order or bill is drawn on a particular fund, it is not negotiable.

The conclusion is, that the ruling of the referee was correct, that this action could not be maintained.