11 Ind. 497 | Ind. | 1859
This was a suit by the appellees against the appellant upon two bills of exchange; upon one as indorser, and upon the other as drawer.
The first paragraph of the complaint counts upon a bill drawn by Richard Tyner upon James M. Tyner and William Childers, by the firm name of Tyner and Childers, payable to Holland, at Hatch and Langdon's, Cincinnati, Ohio, accepted by Tyner and Childers, and by Holland indorsed to the appellees.
The second paragraph is predicated upon a bill drawn by Holland, upon Richard Tyner, payable to the above-named Tyner and Childers, at the Central Bank, Cincinnati, Ohio, accepted by R. Tyner, and indorsed by Tyner and Childers to the appellees. Both of the bills waive-any relief from valuation or appraisement laws.
The defendant put in issue the indorsement of the one,, and the drawing of the other, by denial under oath. Trial by jury, verdict and judgmént for plaintiffs below.
The appellant assigns for error the giving of several instructions to the jury, and the refusal of the Court to give instructions prayed for.
It appears by a bill of exceptions, that on the trial it was proved by the testimony of Richard Tyner, that Holland, the defendant, had, for a long time, been in the habit of giving him (the witness) his signature, as drawer and indorser on bills, to be filled up by witness for such sums as he wanted from time to time, and that the witness had used such bills as he needed them, but that Mr. Holland never expressly authorized him to put in the clause waiving valuation laws. The two bills were blanks as follows, when Holland put his name to the one as drawer, and to the other as indorser, viz.:
No......... 185..
Pay to the order of
value received.
These bills were both blank as to date and place of drawing, time of payment, name of payee, amount and place where payable.
The one drawn by Holland on witness was taken by him to the plaintiffs, with his acceptance written thereon, together with the indorsement of Tyner and Childers, to be filled up by plaintiffs; but witness said nothing to them about filling it up waiving appraisement laws. It was filled up by plaintiffs as to date, amount, &c., and a clause inserted waiving appraisement laws. After it was filled up, it was handed to witness to look over, and he says he glanced over the amount and time it had to run, but did not observe the rest of it. He then handed it back to plaintiffs.
dollars,
Holland had given witness no authority to insert the waiver, unless the authority was implied from his giving him his signature on bills in blank, as these were when his signature was obtained. Holland had no interest in these bills, but was a party to them for the accommodation of the witness. The bills were given to the plaintiffs in novation of two other bills on which Holland was an accommodation drawer or indorser for the witness, neither of which last-named bills waived the appraisement laws.
This is the substance of the testimony of Richard Tyner as to the manner of executing the bills by Holland.
The Court, at the request of the plaintiffs, charged the jury as follows:
“ That if George Hollcmd drew one of the bills iiísuit, and indorsed the other, in the manner testified to by Richard Tyner, the said bills were valid and binding on the said George, and the issue made by the plea of non est factum, must be decided against the said George, and in favor of the plaintiffs.”
This charge was duly excepted to.
The defendant asked several instructions, to the effect that, under the circumstances, the plaintiffs had no right, in filling up the bills, to insert the clause waiving appraisement laws, and that such clause vitiated the bills as against Holland; but these instructions were refused, and exceptions taken.
Upon the instruction given, and those refused, two questions arise—
1. Was there any authority to insert the clause waiving the appraisement laws ?
2. If not, does the insertion of it vitiate the bills, or will
There can be no doubt that if a person indorses or signs a blank paper or note, and intrusts it to another that he may raise money upon it, he authorizes that other person to render him liable in any amount, and at any time he may please. There is no restriction in the implied authority in such case. Bell v. The State Bank, 7 Blackf. 456, and authorities there cited. Many other authorities might be cited to the same effect.
In the case of The Mechanics and Farmers’ Bank v. Schuyler, 7 Cow. 337, it is said that “ An indorsement on a blank note, without sum, or date, or time of payment, will bind the indorser for any sum, payable at any time which the person to whom the indorser intrusts it chooses to insert.” The authorities, probably, will sustain the position that, in such case, any and all blanks may be filled which are necessary and proper to make the instrument a perfect and complete bill of exchange, or promissory note, as the case may be; but we know of none which would sustain the position that simply signing and delivering such>blank paper, would authorize the insertion of a clause wholly unnecessary to make the paper perfect and complete as an ordinary note or bill.
The case of Crutchley v. Clarence, 2 M. and S. 90, certainly does not countenance the idea that anything may be added except the filling of such blanks as may be necessary to make the bill perfect. It was a case where a bill had been issued blank as to the name of the payee, which had been inserted by the holder.
Lord Ellenborough, C. J., says: “As the defendant has chosen to send this bill into the world in this form, the world ought not to be deceived by his acts. The defendant, by leaving the blank, undertook to be answerable for it when filled up in the shape of a bill.” Bailey, J., says: “ The issuing of the bill in blank, without the name of the payee, was an authority to a bona fide holder to insert the name,”
In Edwards on Bills, &c., p. 95, it is said that, “ Where
In Bruce v. Westcott, 3 Barb. 374, it was held that the insertion of the words “ or his order” in a promissory note, after the name of the payee, although there was sufficient space left to do so without creating suspicion in the mind of an innocent holder, rendered the note invalid in the hands of such innocent holder, on the ground that the note was already perfect without the words of negotiability. In the case at bar, if the bills in question had been entirely filled up with the sums, dates, &c., and made in every respect perfect, at the time they were delivered by Holland to R. Tyner, excepting the insertion of the clause waiving appraisement, it will scarcely be contended that Tyner would have had the right to insert such clause. Such a power would be an extremely dangerous one, as it might subject parties to bills, to a kind of liability which they never, for a moment, contemplated incurring. This, very clearly, could not be done; and we are wholly unable to see how the leaving of blanks that may be filled up by the holder, would authorize the insertion of a clause which could not have been inserted had the blanks been filled up. "We are of opinion that the signing of the bills by Hollcmd, and their delivery to Tyner, did not authorise the insertion of the clause in question.
Was there anything in the facts and circumstances attending the transaction that conferred such authority?
Tyner says that Holland never gave him any such authority, unless it was implied, &c., and although the defendant had been, for a long time, in the habit of giving Tyner his signature, as drawer and indorser on bills in blank, to be filled up by Tyner, yet it does not even appear that he had filled up other bills in this way, and that his acts were subsequently ratified and confirmed by Holland. The bills were used in novation of other bills to which Holland was an accommodation party for Tyner, which last bills did not contain the waiver. We see nothing in the facts and
The second question, as to the effect of the insertion of the waiver, is not entirely free from difficulty. It is insisted that if there was no authority to insert it, its insertion was a mere excess of authority, which would not vitiate the bills, and that they may be treated as if this clause had not been inserted.
It is abundantly settled, that a material alteration in a note or bill, avoids it as to previous parties not consenting to the alteration. Bell v. The State Bank, supra.—Master v. Miller, and cases collected in 1 Smith’s Lead. Cases, 490b.—Edwards on Bills, &c., 95.
There is not, strictly, an alteration in the terms of the bills, as by striking out something inserted, and supplying the matter stricken out with something else, but the incorporation of an entirely new feature into the contracts, varying their legal effect, by adding stipulations not contained in the bills originally, nor authorized to be inserted. "We cannot view the matter in any other light than we should if the bills, when delivered by Holland to Tyner, had been in every respect perfect, with all blanks filled, and the clause in question afterwards interpolated. Nor can we distinguish the difference in principle between the interpolation of a new clause into a contract, whereby its legal effect is materially changed, and striking out one thing and inserting another, whereby the same result is effected. The bills, in their present shape, are the contracts of Holland, and he is bound by them, or they are not his and he is not bound at all. Each is entire, and must be recovered upon as an entirety or not at all. The case is claimed to be like one where an excess of authority is exercised by an agent, where the thing authorized to be done is divisible from that not authorized. As, if a servant is authorized by his master to sell a horse, but not to make any warranty against defects; or, if an agent is empowered to convey lands, but not to warrant the title, and the agent sells or conveys with a warranty, the warranty only, and not the
The plaintiffs cannot complain that they were, in any manner imposed upon. They were advised that the bills did not contain the waiver when signed by Holland, as it was inserted by themselves. They must be presumed to have known that the signature of Holland to the blank bills did not authorize the insertion of that clause, as every man is presumed to know the law; and Tyner did not represent to them that he had any authority to do so, or say anything about it, nor did they institute any inquiries of him on the subject.
The instruction given to the jury was erroneous, and the iudgment must be reversed.
Per Curiam. — The judgment is reversed with costs. Cause remanded for a new trial.