Hunt v. Aldrich

27 N.H. 31 | Superior Court of New Hampshire | 1853

Eastman, J.

The defence to this action is made by Aldrich, the surety on the note, Thompson having been defaulted.

The note was made to raise money. It was a negotiable, accommodation note. The contract was to pay the Cheshire Bank, or theiiv order, one hundred and 'fifty dollars, at their banking house, in ninety days. And had the defendant fulfilled his contract and gone to the bank at the expiration of the ninety days with the money, he would undoubtedly have found the note there, and could have taken it up. But if not there, he could have left the money and he would have been discharged from any further liability.

The defendant was aware of the purposes for which the note was made. He signed it to accommodate Thompson ; and inasmuch as the place and time of payment were fixed, it could make no difference whatever to him, whether the bank advanced the money, or any one else. All he. had to do, was to perform his contract and pay the money at the time and place that he agreed to, and he would be discharged.

But the questions presented in this case must be regarded as settled in this State.

In Cross v. Rowe, 2 Foster’s Rep. 77, it was held that a negotiable note, made payable to a bank, or order, but not discounted by them, might be indorsed to the holder of the note by a vote of the directors of the bank; and that where such note is made to raise money, the sureties upon it cannot object that, by so doing, the note has been turned from its legitimate purpose so as to discharge them from their liability.

The note in that case was made payable to the bank, or order, but was not discounted by them, nor was it indorsed to the plaintiff till two or three months after it fell due.

In Elliott v. Abbott, 12 N. H. Rep. 549, where the note was given payable to a bank, and the money advanced by the plaintiff, it was held, that the note might be declared on as a note made payable to the bank, giving to the bank an indemnity for costs ; or that the holder might declare upon it as made payable to himself by the name of the bank. It was further said in that case tha,t it seems that the holder may, also, at his election, declare on the note in his own name, as a note payable to bearer, regarding the name of the payee as fictitious. It was also held that if the holder could obtain a valid indorsement by the bank, he might maintain an action as indorsee.

Now although the ease at bar is not, as suggested by the defendant’s counsel, identical in its facts with the two cases cited, yet in principle it is the same. The doctrine which governed those cases, as also the case of Chenango Bank v. Hyde & a., 4 Cowen’s Rep. 567, cannot, we think, be distinguished from this case, so as to relieve the defendant from his liability. The principle is this, that when a note is made to raise money, it does not change the liability of the parties to the note that the money is advanced by a third, person instead of the payee; and the holder may declare upon the note as 'made payable to himself by the name of the payee, if not as payable to bearer.

We have taken no notice of the fact that Aldrich took security when he signed the note. "Were it necessary, that might perhaps become an important consideration. 1 Story’s Eq. 481; 11 Vesey’s Rep. 22.

Judgment on the verdict.