40 Neb. 484 | Neb. | 1894
A brief statement of the pleadings is necessary to a consideration of this ease. The plaintiff in error was the plaintiff in the district court. In her petition she avers
The defendant, by its answer, admits the deposit and the-issuance of a certificate in words and figures as follows:
“First National Bank,
“Hastings, Nebraska, Dec. 4, 1890. 28906.
“This certifies that Miss Rose Kirkwood has deposited in this bank three thousand dollars ($3,000), payable to-the order of self, in current funds, on return of this certificate properly indorsed. This deposit not subject to check. With interest at six per cent if left six months; no interest after six months. C. B. Hutton, for Cashier.
“ Certificate of deposit.”
The defendant further alleged that when the plaintiff demanded payment she failed to produce the certificate, claiming that she had lost it; that the defendant was at all times ready and willing to pay the certificate upon its production, or, if lost, to pay it upon the execution and delivery of a sufficient indemnifying bond. The defendant then denied each and every allegation in the petition not specifically admitted or modified, and prayed that the plaintiff be ordered to execute and deliver an indemnity bond to secure it against any loss by reason of said certificate.
There was a trial upon these pleadings, a jury being expressly waived, and the following finding and judgment were entered:
“This cause comes finally on to be heard upon the petition of the plaintiff, the answer of the defendant, and the-
“ It is therefore considered and adjudged by the court, that the plaintiff have and recover of and from the said defendant the said sum of $3,090, and that each party to this action pay half of the costs herein.
“It is also considered and ordered by the court that the defendant pay the said sum of $3,090 to the clerk of ihis court, to be paid over to said plaintiff upon the filing by plaintiff, with the clerk of this court, of a good and sufficient bond of indemnity with approved sureties, to be approved by said clerk, indemnifying the said defendant against any and all liability which may hereafter arise and might subject the said defendant to the payment of the said certificate of deposit, as set out in said petition, and heretofore lost by said plaintiff.”
The plaintiff brings the cause here, assigning several errors, all, however, going to the authority of the court to make an order requiring a bond of indemnity. There is no bill of exceptions and the case can be reviewed only upon the petition, answer, and judgment.
There is a great deal of argument in the briefs to the effict that the action was begun as one at law; that an action at law can only be maintained upon a lost instrument when it is non-negotiable, or, if negotiable, when lost after maturity or unindorsed, and that in any event in an action at law no indemnity can be required. These distinctions have been recognized in England and generally in those of the United States where the courts of law and equity are distinct. But counsel lose sight of the fact that our district courts are courts of general law and equity jurisdiction; that the Code abolishes formal distinctions between law and equity, and that where a cause of action, either at law or in equity, is stated in a petition the district court may
Was there anything upon this certificate to take it out of the general rule and render it non-negotiable? It is argued that the provision that it should be payable “on return of this certificate properly indorsed” destroys its negotiability. That, however, was the language of the certificate in First Nat. Bank v. Security Nat. Bank, supra, and such certificates were there treated as negotiable paper. It has, indeed, been frequently said that the stipulation for the return of the certificate adds nothing to the instrument. It is merely the expression of a rule which applies to all negotiable paper, and an action may be maintained without a previous presentment. This question was thoroughly considered in the case last cited. As to the requirement
It is next said that the amount of payment is uncertain' and the instrument for that reason non-negotiable. This argument is predicated chiefly upon the provision that the certificate is payable “ in current funds.” We are aware that many courts have held that such a clause does not require payment in money, and destroys the negotiability of the instrument. The cases so holding are either cases arising at a time when many forms of bank notes and bills were in use, varying in their values, or cases decided upon the authority of that class wilhout regard to changed conditions. With regard to existing conditions we think the supreme court of the United States has declared the law correctly in Bull v. Bank of Kasson, 123 U. S., 105, as follows : “ Within a few years, commencing with the first issue in this country of notes declared to have the quality of legal tender, it has been a common practice of drawers of bills of exchange or checks, or makers of promissory notes, to indicate whether the same are to be paid in gold or silver, or in such notes; and the term ‘ current funds’ has been used to designate any of these, all being current and declared by positive enactment to be legal tender. It was intended to cover whatever was receivable and current by law as money, whether in the form of notes or coin. Thus construed, we do not think the negotiability of the paper in question was impaired by the insertion of those words.” This also is the doctrine of the court of appeals' •
It is also contended that the negotiability of the instrument was destroyed by uncertainty of amount arising from the provision that it should draw interest at six per cent if left six months, but no interest after six months. In Lamb v. Story, 45 Mich., 488, it was held that the negotiability of a note payable on or before two years from date was destroyed by a memorandum attached, providing that if paid within one year there should be no interest, and that case is cited by Mr. Daniel in support of a similar statement and is the only authority cited. We are not satisfied with that doctrine. In Hope v. Barker, 112 Mo., 338, the provision was “without interest thereon if paid at maturity; if not paid at maturity, to bear interest from date.” It was held that that provision did not destroy the negotiability of the note, the note on its face showing what should be paid at any particular time and being therefore certain in its terms. The circuit court of appeals for the sixth circuit has recently held that a provision for interest after maturity and attorney’s fees did not render a bill non-negotiable, saying: “It is intended to be a circulating medium until maturity. Eor this purpose every purchaser must know exactly what will be or ought to be paid on it at maturity. It only has currency upon the hypothesis that it is to be paid at that time. If the sum then to be paid is fixed and certain, we do not see why that is not-sufficient.” We think the same reasoning applies here. Every purchaser has upon the face of the note evidence of the exact amount
"When did the certificate become due so as to charge á purchaser with notice of equities? There could he no doubt that if the certificate had provided simply for payment upon presentment properly indorsed, it would be in effect a promissory note payable on demand and would be overdue, so as to charge a purchaser with notice, at the latest after the lapse of a reasonable time for presentment. (Daniel, Negotiable Instruments, 783.) But the terms of this instrument are different. It was to draw interest if left six months, but in no event to draw interest after six mouths. In First Nat. Bank v. Security Nat. Bank, supra, an instrument payable upon the return of the certificate properly indorsed/ but bearing across its face the language, “This certificate payable three months after date with six per cent interest per annum for the time specified,” was held to be payable three months after date. There the language was absolute and the construction given was undoubtedly correct. We should here follow the rule adopted in that case and so construe the certificate as to give effect to every part. It would seem that the result would be to reach an analogy to instruments payable “ on or before” a certain date, which are due at the expiration of the time so fixed and not before. (Mattison v. Marks, 31 Mich., 421; Daniel, Negotiable Instruments, sec. 43.) Surely a purchaser reading this certificate within six months from its date, observing that if presented before the expiration of six months it would draw no interest, but if presented at the end of that period would bear interest, would be justified in presuming that it had not
Recurring now to the judgment it will be seen that the only finding upon the issues was “that there is due to the plaintiff from the defendant upon the cause of action set out in her said petition the sum of $3,090.” Does this finding support the judgment rendered? In several cases the general doctrine has been announced that a finding need be no more specific than the verdict of a jury upon the same pleadings. Upon this rule it has been held that where a justice of the peace rendered judgment, saying, “it was found by this court that the plaintiff have and recover” a certain sum was sufficient; but the issue in that case was practically the general issue upon a claim and counter-claim. (Ransdell v. Putnam, 15 Neb., 642.) In Rhodes v. Thomas, 31 Neb., 848, a justice rendered a judgment as follows: “Court convenes and defense proceeds with examination of witnesses, after which case is argued by parties and submitted to the court, with the following finding: October 17, 1888, after hearing the evidence, it is therefore considered by mo that the plaintiff have and recover from the defendant the
Judgment accordingly.