79 N.J.L. 40 | N.J. | 1909
The opinion of the court was delivered by
This was an action brought against the endorsers of a promissory note, of which the following is a copy:
*41 "$3,500.00. Sam Diego, Cal., October 7th, 1901.
“Two years after date, without grace, for value received, I promise to pay to the order of Ella J. Gibbs, at the First National Bank of San Diego, Thirty-five hundred Dollars, with interest at the rate of 5 per cent, per annum from October 7th, until paid, interest payable semi-annually, and if not so paid to be compounded with and bear the same rate of interest as the principal; and should the interest not be paid when due, then the whole sum of principal and interest shall become immediately due and payable at the option of the holder of this note. Principal and interest payable in gold coin of the United States. Should suit be commenced, or an attorney employed to enforce the payment of this note, I agree to pay an additional sum of 6 per cent, on principal and accrued interest as attorney’s fees in such suit.
"Internal Revenue Stamp. Eobekt F. Hibson.
"Witness:
"Foster M. Voorhees.
"II. E. Nelles.”
'The note was secured by a mortgage of even date on California lands; in 1902 Mrs. Gibbs assigned the note and mortgage to her husband, Coleman A. Gibbs, the other defendant, in California, for the purpose of enabling him to effect the sale thereof; on May 16th, 1903, the two defendants assigned the note and mortgage to Sarah F. Mackintosh, the plaintiff’s testatrix, and endorsed the note in blank and delivered the note and mortgage to her in Asbury Park, New Jersey; on October 7th, 1903, the note was presented for payment at the bank where payable and payment refused; on the following day payment was again demanded and refused and'the note protested and notice of the protest and demand mailed to each defendant; in 1905 the mortgage was foreclosed in California by the administrator with the will annexed of Sarah F. Mackintosh, to which suit the present defendants were not made parties: there was a deficiency judgment in the foreclosure, and the final account of the administrator with the will annexed was allowed by the California court,
We think the trial judge fell into error through a failure to consider the exact character of the contract sued upon. That contract was evidenced by the signing of the names of the defendants upon the note at the time of the transfer in this state. Whether or not they intended to become liable for the payment of the note is a matter of no consequence, as
the law of the place where the bill is drawn, and each successive endorser is liable according to the law of the place where he endorses — every endorsement being treated as a new substantive contract.” The same doctrine was approved by the Court of Errors and Appeals in Oliphant v. Vannesl, 29 Id. 162. Since the contract of the defendants was an independent contract, its validity and effect is to be determined not only by the law of this state, where it was made, but by that law at the time when it was made. It is unnecessary to determine whether such a note was negotiable prior to 1902 since at the time the note was transferred the Negotiable Instruments act was in force. By section 2 of that act the instrument sued upon was negotiable notwithstanding the fact that it contained provisions for payment with interest payable semiannually, and a provision that upon default the whole sum should become immediately due and payable at the option of the holder, and that it was to be paid with an attorney’s fee. Section 63 enacts that a person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an endorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity. By virtue of these sections the contract was a contract of endorsement. This contract of endorsement was entirely distinct from the contract of the maker to pay the note and from the debt arising against the maker by reason thereof. It is only by virtue of the act of 1855, which now appears as section 29 of the Practice act, that maker and endorser can be included in a single action. Craft v. Smith, 6 Id. 302. A
It is, however,, suggested that there may be a difficulty growing out of the alleged extension of the time of payment. The court did not find as a fact that the time of payment had actually been extended, but merely that in the assignment of the mortgage it was stated that the time of payment of the mortgage had been extended. Such a statement, however, is not equivalent to a finding of the fact, for whether there had
The view taken by the learned trial judge that the action was not maintainable by the' plaintiff in his representative capacity is quite untenable. The settlement of the California portion of the estate under the ancillary letters granted to the administrator with the will annexed in that state could not affect either the rights or the liabilities of the executor in New Jersey. The proper decree of the California court was to decree that the balance, after paying the claims in that state, be sent to the executors in New Jersey for distribution. 3 Wms. Ex. (6th Am. ed.) 1763, 1767, note m; Banta v. Moore, 2 McCart. 97; Neilson v. Rusell, 47 Vroom 655. In fact the finding of the court in this case was that the California court directed the ancillary administrator to distribute the decedent’s estate to the plaintiff herein. If this were not so, however, the note was endorsed by the defendant Ella J. Gibbs, the payee, by an unqualified endorsement. All the subsequent endorsements might be stricken out by the plaint
The facts found in this case by the court establish the right of the plaintiff to recover the unpaid balance of the note, and since the case comes before us upon special findings the plaintiff is entitled to enter final judgment in this court upon having his damages properly assessed in the usual way. This disposes of the case finally upon the merits, and the plaintiff is entitled to costs in the court below, but not in this court. Lehigh Valley Railroad Co. v. McFarland, 15 Vroom 674.