Lynch v. Goldsmith

Sep 15, 1879
Reporters:
Before:
Bleckley
Bleckley, Justice.

There was no cause for arresting the judgment. The declaration was framed on a correct theory of the law, was full enough, and set forth a cause of action. The instructions of the court, except that portion of the same embraced in that ground of the motion for new trial numbered 4th in the report, were substantially correct, but did not exhaust the case. The request to charge reported in the 5th ground of the motion was proper, and was in writing. It should have been given to the jury, A new trial results from the denial of the request, and ‍‌​​​‌‌‌​‌‌​​​‌‌​‌‌‌​‌​​‌​​‌‌‌‌‌​‌​‌‌‌​‌‌‌‌​​​​‌‌​‌​​‌​​​​​‌​‌‌​‌​​‌‌​‌​​​​​‌​​​‌‌‌​​​‌​​​‌‌​‌‌​‌‍from the misdirection which is quoted in the last head-note ;■ but it is proper to go over some of the points made in the record, and dispose <of them severally.

*501. The instruments issued by the bank and indorsed by Lynch are, in effect, negotiable promissory notes, payable generally on demand and due immediately. That they are promissory notes, see 7 Ga., 84 ; 6 Ib., 588 ; 7 Ib., 584 ; 9 Ib., 388 ; 17 Ib., 574. They contain words of negotiability, being payable to Lynch’s order. 56 Ga., 205 (text); 62 Ib., 79, (text). That they are to be construed as payable generally, and at no particular place, and therefore not at a chartered bank, see 13. Ga., 287. And that they belong to the class of paper payable on demand, and consequently due immediately, see 56 Ga., 605; Ib., 257; Code, § 2791 With reference to demand upon the maker and notice to the indorser, the Code is decisive. It provides, in section 2781, that when promissory notes are made for the purpose of negotiation, or intended to be negotiated, at any chartered bank, and the same are not paid at maturity, notice of the non-payment, and of protest for non-payment, must be given to the indorser, or the indorser will not be held liable, and that upon no other- notes shall notice ‍‌​​​‌‌‌​‌‌​​​‌‌​‌‌‌​‌​​‌​​‌‌‌‌‌​‌​‌‌‌​‌‌‌‌​​​​‌‌​‌​​‌​​​​​‌​‌‌​‌​​‌‌​‌​​​​​‌​​​‌‌‌​​​‌​​​‌‌​‌‌​‌‍or protest be held necessary to charge the indorser. The instruments which we are considering were indorsed long after maturity, and therefore if they had been expressly payable at bank, the indorser was not entitled to notice. 44 Ga., 178. Again, if, as we have held, the instruments were payable generally, demand and notice were unnecessary to bind the indorser. 44 Ga., 63. The better opinion seems to be that the face of the paper, and that alone, is to govern on the question of right to notice. 4 Ga., 106; 30 Ib., 271; 52 Ib., 131; 59 Ib., 776. Apparently contra, 28 Ib., 177.

Having spoken thus far for the court, candor obliges me to add, that since the decision was pronounced, the following line of reflection has occurred to me i What is a certificate of general deposit issued by a bank ? Is it not an acknowledgment of the bank that it has received a loan of money from the depositor, coupled with a promise implied, if none be expressed, that it will repay the loan at the bank upon actual demand or call, if no particular time or place *51be specified ? Does not tbo known course of business require this construction, and does not the nature of the transaction suggest it? If these questions be answered in the affirmative, ‍‌​​​‌‌‌​‌‌​​​‌‌​‌‌‌​‌​​‌​​‌‌‌‌‌​‌​‌‌‌​‌‌‌‌​​​​‌‌​‌​​‌​​​​​‌​‌‌​‌​​‌‌​‌​​​​​‌​​​‌‌‌​​​‌​​​‌‌​‌‌​‌‍there is no dishonor of the certificate until after actual demand at the bank, and consequently not until after such demand is the paper over-due. If demand must be made at the bank, then the bank is the place of payment; and the right of the indorser to notice would seem to follow unless the fact that the bank was in a state of suspension, and so known to be by both parties, when the certificates were negotiated, constitutes an excuse for the omission of notice. But I pass on to the other points.

2. There can be no possible doubt that the indorsement of Lynch imported, prima facie, an undertaking to pay, and that the burden of rebutting is on him. lie was the payee of the certificates, and he indorsed in blank, and after so indorsing, made delivery, and received value. Formerly he would have been precluded from shielding himself by parol evidence, but under the Code he may do so. While a blank indorsement, standing by itself, still has a distinct legal meaning, it is, in relation to extrinsic facts, an unbounded ambiguity — a line with an unlimited margin on either side.

8. As was his right, Lynch attempted to explain and qualify his indorsement by his own testimony, after ‍‌​​​‌‌‌​‌‌​​​‌‌​‌‌‌​‌​​‌​​‌‌‌‌‌​‌​‌‌‌​‌‌‌‌​​​​‌‌​‌​​‌​​​​​‌​‌‌​‌​​‌‌​‌​​​​​‌​​​‌‌‌​​​‌​​​‌‌​‌‌​‌‍pleading that he indorsed solely for the purpose of ‘passing title, and with no intention of becoming liable, and that this was well known to the plaintiff. In the request to charge which the court declined, it was sought to have this defense recognized as legally available. The action was between the original parties, and no rights of third persons were involved. The Code says, in section 2756: “ The intention of the parties may differ -among themselves. In such case, the meaning placed on the contract by one party, and known to be thus understood by the other party, at the time, shall be held as the true meaning.” It seems to‘us clear that the request to charge was within this section of the Code; and *52there was undoubtedly some evidence that Lynch understood the effect of indorsing in blank, under the special circumstances, to be as he alleged in his plea, and that his understanding was known at the time to Goldsmith. The indorsement being in blank, this evidence did not contradict the writing, but went to explain its ambiguity. The conflict in the evidence should have been left to be settled by the jury, but they should have been instructed as matter ‍‌​​​‌‌‌​‌‌​​​‌‌​‌‌‌​‌​​‌​​‌‌‌‌‌​‌​‌‌‌​‌‌‌‌​​​​‌‌​‌​​‌​​​​​‌​‌‌​‌​​‌‌​‌​​​​​‌​​​‌‌‌​​​‌​​​‌‌​‌‌​‌‍of law that the defense was sufficient if they found as matter of fact that it was proved.

4. The absolutely predominant influence which the court, in charging the jury, gave to the “undisturbed” facts was error. The facts which were in repose, unless some of them were made to bend to those which were in agitation, necessitated a recovery by the plaintiff. The true dispute lay in the region of the controverted facts, and to reach a correct verdict without disposing of them was impossible. Not by one description of facts or another, but by all the facts, ought the finding to be governed.

Judgment reversed.