148 P. 412 | Utah | 1914
Lead Opinion
TMs is an action to revover on a negotiable promissory note executed and delivered by the defendant to one Conrad, the 'payee, and by him indorsed and delivered to the plaintiff before maturity. The defense is that the note was given without consideration, and was obtained through fraud and misrepresentations on the part of Conrad, and that the plaintiff took it without value and with notice. The case was tried to the court, who found that the note was given without consideration, and was obtained through fraud, but found that:
“The plaintiff was an innocent purchaser for value without knowledge of any defect in or defenses to said note, and acted in good faith in said transaction, and is a holder in due course of said note for a valuable consideration paid before maturity."
Judgment was accordingly entered in favor of the plaintiff. The defendant appeals. He urges that the quoted finding is not a finding of fact, but mere statements of conclusions, and is insufficient, as to such issue, to support the judgment; that the court cast the burden of proof on him to show that the plaintiff was a purchaser with notice, and not in good faith; and that the evidence, without substantial conflict, shows that the plaintiff did not acquire title as a holder in due course.
A finding of what the plaintiff paid or gave for the note, of the ultimate facts and circumstances under which he pur-
In an opinion delivered by the court after a submission of the case for decision, but before findings were made, the court stated, in effect, that the burden of proof was on the defendant to show that the plaintiff purchased with notice, and not in good faith. But thereafter, and before findings, the case was reopened, reargued, and resubmitted.
It is true, as contended, that the opinion cannot be looked to to ascertain what the court found or decided. The findings, conclusions, and judgment, as made, filed,
But it also has been held by this court that, when an opinion, as here, is settled in the bill and made a part of the record, it is properly before us; and, while “it amounts to no judicial finding of fact, and has no judicial effect,” yet it “may be looked to to ascertain the judge’s reasons
Here, after proof adduced that the title of the person negotiating the note to the plaintiff was defective, the law cast the burden on the plaintiff to show that he acquired title as a holder in due course. If the court reached
The evidence, without substantial conflict, shows that the plaintiff and the defendant both resided in Salt Lake City. Conrad, an agent of the Aegis Life Ins. Co., sold the defendant 100 shares of the capital stock of that company
We thus, upon the evidence, have this situation: The plaintiff, without notice of any infirmity in the note, in good faith, on the morning of December 2d, gave Conrad, in exchange for the note, two checks, one for $200, and one for $2,000, with the request that the latter be not presented until the next day. Both were presented the next day and paid.
“Looking at it in this view,” said the court, “it is seen that it was'*267 not contemplated by the parties, or intended, that these cheeks then given should ever he presented or paid. They were never, in fact, presented, and nothing was ever advanced on them. The money was paid on other checks, substituted for the first, according to the arrangement first made. At the time, therefore, when the plaintiff was fully notified of the fraud, he had only these checks outstanding, which were not to he presented, hut which were to he returned! to him at a future day. * * • * The first checks, therefore, were not intended to create an * * * unconditional liability against the plaintiff. It was not expected they would be presented, or their payment enforced. The whole transaction at that time rested in this loose executory agreement, to be performed at some future time, altogether uncertain in the minds of the parties. It seems to me plain from this that nothing valuable had been-parted with by the plaintiff at the time the notice was given. The real obligations upon which the money was advanced were given long afterwards, and at a time when their date and presentment and payment would afford the plaintiff no protection.”
The Supreme Court of the United States, in Dresser v. Construction Co., 93 U. S. 95, 23 L. Ed. 815, in referring to that case, said:
“It was .held that he (the plaintiff in Crandall v. Vickery) was not a tona fide holder, for the reason that the transaction was ex-ecutory when he received notice of the fraud; * * * that the real obligations were given afterwards, and under circumstances that afforded no protection”
—and that the checks given before notice of the fraud were not, nor intended to be, the consideration for the note.
The reason for which the transaction in Crandall v. Vickery was held to be executory was not because checks had been given in exchange for the note, but because the first checks were not, nor intended to be, at any time presented or paid, but to be returned and exchanged for other checks; and, since the latter, and not the former, were the real obligations and the real consideration for the note, and since the holder, before such exchange and substitution of cheeks, had notice of the infirmity, he was not protected. For these reasons we think the case of Crandall v. Vickery not analogous to this.
Other cases are cited by the defendant to the effect that the giving of a check for a pre-existing debt, or for goods sold and delivered, does not constitute payment, if the cheek, on
This case, as we think, rests upon different principles. True, a check, unless expressly agreed to be absolute payment, is but conditional payment; the condition being that upon presentment in due course it will be honored and paid. If it be given for a pre-existing debt, but upon presentment in due course is dishonored and not paid, of course, the debt as to the person receiving the cheek is not discharged. If, on the other hand, it is paid, then the debt is discharged, and payment relates back, so far as regards the extinguishment of the indebtedness, to the time when the check was given. 22 A. & R. Ency. L. (2d. Ed.) 573. The rule of conditional payment is, however, in the interest of the person receiving the check, and not of the person giving it. As to the former, it is not payment unless paid, or unless he expressly accepted it as absolute payment. As to the latter, it is payment when he delivers it, though it be dishonored and not paid, if the person receiving it chooses not to complain, or, nevertheless, to regard it as payment. If given for a pre-existing debt, and is not paid, the person receiving it may treat the indebtedness discharged and sue on the check, or he may treat the indebtedness as not discharged, and sue on the debt, or he, as affecting himself merely, may do neither, and call “things square.” The law requires taxes to be paid in money; the collector may decline to receive anything but money in payment of them. If, however, he accepts a taxpayer’s check, unless he takes it as absolute payment, he takes it on the condition that it, on presentment in due course, will be paid. If,
‘'■Where one has given his own note in purchase of the note of another from the payee, notice to him by the maker not to pay his note given in purchase, and that the bought note originated in fraud, does not deprive him of the character of a dona fide holder for value, and he need pay no attention to such notice.”
A ease in point, as we think, is Matlock v. Scheuerman, 51 Or. 49, 93 Pac. 823, 17 L. R. A. (N. S.) 747. There Scheuerman, on the 12th day of December, gave his check to one Swaggart. It was given for a gambling debt. Matlock, who had no knowledge of that, received it from Swaggart on the 13th in exchange for his (Matlock’s) check. Swaggart told him that Scheuerman had asked him “to wait two or three days” before presenting Scheuerman’s check, but that he (Swaggart) needed the money. Thereupon Matlock stated he would give, and gave, his check for it. Matlock, on the morning of the 14th, presented the Scheuerman check for payment. Payment was refused, and Matlock then notified by the bank that Scheuerman had stopped payment. Swaggart did not present Matlock’s qheck until the next day, the 15th, when, upon presentment by him, it was paid. When payment on the Scheuerman cheek was refused, Matlock had ample time to have stopped payment of his cheek before it was presented, but did nothing to ascertain whether it had
“If defendant’s theory is correct as to what constitutes payment, and when it took place, then Matlock received notice of an infirmity in the instrument before he paid value, and he would he bound at his own peril to stop payment of his own check. But we have already held that, where there is an exchange of commercial paper, as there was in this case, each instrument is a sufficient consideration for the other, and such exchange is an independent obligation, not conditioned on the payment of the other, unless such condition is expressed in it. It necessarily follows that the non-payment of the Scheuerman check would not be a defense to Matlock in an action against him on his own check brought hy Swaggart,” and would only be available by way of set-off. “As between Matlock and the bank, he could doubtless have stopped payment of his own check when denied the Scheuerman check, but that would not have relieved him of liability on his own check, either in the hands of Swag-gart or of a third party as assignee. While Matlock may have had a cause of action against Swaggart, as an indorser upon due notice to him of non-payment, he is also entitled to his action against Scheuerman, and he was not bound to pursue the former for the protection of the latter, to whom he was under no legal duty on account of the original invalidity of the check.”
Notice affecting the holder must exist at the time he acquires title; for then his relation to it is fixed. But, if notice is received before he pays for the paper, although the contract has been entered into, he is not on a footing of a bona fide holder without notice; if he paid a part before notice, he is protected only to that extent. Daniel (6th Ed.) Section 789a. That also is the statute. Hence the important factor here, as in the Matlock Case: “What constituted payment, and when was it made?”
Where, as here, negotiable checks are exchanged for a negotiable note when each is an independent obligation and a sufficient consideration for the other, the purchaser
Much is made of the request that the $2,000 check be not presented on the day it was delivered, but on the next day. From that it is argued that the real transaction shows a mere. promise or agreement to pay in the future. The fact is relevant to consideration and good faith; but the conclusion is not maintainable. The transaction has no element of a mere offer, promise, or of a mere executory agreement to pay in the future. As said in the Matlock Case, supra:
The request “was not binding on the payee. It did not vary the terms of the writing. It added nothing to it and took nothing from it that was essential to its character as a negotiable instrument. From such a request one would usually and rightly infer that the maker had not funds on deposit to meet the check when issued, but would deposit sufficient funds within the time, and, by the use of such language, notice of that fact might be given; but it is not calculated to carry notice of any infirmity in the contract.”
We are of the opinion that the plaintiff acquired title as a
Such is the order.; costs to respondent.
Concurrence Opinion
I concur. At the time of the argument, and before a careful and thorough examination of the authorities, I was strongly inclined to the opinion that the mere giving of the checks by the respondent did not constitute payment for the note in question. The authorities, however, do not support that opinion. The cases that must control here, as pointed out by Mr. Justice STRAUP in the prevailing opinion, are clearly to the effect that,, where one person issues his negotiable check in exchange for negotiable paper, such check, for the purpose of protecting the purchaser, constitutes payment for such paper; and if the check be given in good faith before maturity of the paper, and without notice of any infirmity therein, the giver of the check, ordinarily at least, is a holder in due course, and may enforce payment of the paper, although he may receive notice of some infirmity therein before the cheek is actually paid by the bank or person on whom it is drawn. The courts make a clear distinction between transactions relating to the purchase of commercial paper and those relating to property generally, whether real or personal, and it would be futile to attempt to explain away the distinctión. Nor is it of any consequence that, in my judgment, there should be no such distinction. It is my duty to declare the law as I find it, and not as I should like to have it. As was said by an eminent jurist in Stack v. N. Y., etc., Railroad, 177 Mass. 158, 58 N. E. 687, 52 L. R. A. 328, 83 Am. St. Rep. 269, so may it still be said:
“No one supposes that a judge is at liberty to decide with sole reference even to his strongest convictions of policy and right. His duty in general is to develop the principles which he finds, with such consistency as he may be able to attain.”
This is especially true of appellate judges. My conviction and judgment, therefore, are important only where there is a diversity of opinion as to the law or facts, or in applying the conceded or found facts to the law. When the authorities
Dissenting Opinion
I dissent. Comp. Laws 1907, section 1606, provides:
“When the transferee receives notice of any infirmity in the instrument or defect in the title of the person negotiating the same before he has paid the full amount agreed to be paid therefor, he will be deemed a, holder in due course only to the extent of the amount theretofore paid by him.” (Italics mine.)
When Miller learned of the infirmity in the note, namely, that it had been obtained by Conrad from Marks by fraud, he had paid but $100 on the purchase price of the note. Now, if the foregoing section of the statute means what it says— and I submit that it does — Miller is entitled to recover “only to the extent of the amount” paid by him before he had notice of the fraud by which Conrad procured the execution of the note by Marks. Miller, at the time he delivered his two checks to Conrad, did not have sufficient funds in the bank on which they were drawn to pay them.' It was agreed between them that the checks would not be presented to the bank for payment until the following day, and that in the meantime Miller would make provision to have sufficient funds in the bank to pay the checks when presented. I have not been cited to, nor have I been able-to find, an authority that holds that the giving and acceptance of a check under such circumstances is a completed transaction and unconditional payment of the
“If the fact of fraud he established, and the jury find from the evidence that the plaintiff paid $500 upon the notes without notice of the fraud, and that after receiving notice of the fraud the plaintiff paid the balance due upon the notes, he is protected only pro tanto; that is, to the amount he paid before he received notice.”
This instruction was approved by the Supreme Court on appeal. In the course of the opinion the court says :
“The notes in question were purchased upon an unexecuted contract, upon which $500 only had been paid when notice of the fraud and a prohibition to pay was received by the purchaser. The residue of the contract on the part of the purchaser is unperformed, and honesty and fair dealing require that he should not perform it; certainly that he should not he permitted, by performing it, to obtain from the defendants money which they ought not to pay. As to what he pays after notice, he is not a purchaser in good faith. He then pays with knowledge of the fraud, to which he becomes a consent*275 ing party. -One who pays with knowledge of a fraud is in no better position than if he had not paid at all. He has no greater equity, and receives no greater protection. Such is the rule as to contracts generally. * * * The plaintiff here occupies the same position as the bona fide purchaser of the first of a series of notes, of which, after notice of a fraud, he purchases the rest of the series. He is protected so far as his good faith covers the purchase, and no farther. Upon receiving notice of the fraud, his duty was to refuse further payment; and the facts before us required such refusal by him. * * * The case before us is governed by the rule that the portion of an unperformed contract which is completed after notice of a fraud is not, within the principle which protects a bona fide purchaser. No respectable authority has been cited to us sustaining a contrary position, nor have we been able to find any.” (Italics mine.)
The court cites with approval the case of Crandall v. Vickery, 45 Barb. (N. Y.) 156 (this case is also cited and briefly discussed by Mr. Justice STRAUP in the foregoing prevailing opinion), and says:
“That case is stronger for the holder than the case before us, in the fact that the checks were there given on the original transaction, which might have been presented or passed oft to the prejudice of the maker.” (Italics mine.)
So in this case Conrad might have “presented or passed off the checks to the prejudice of the maker” immediately after he received them; but he did not do so. If a third party had purchased the checks from Conrad in good faith without any knowledge of the fraud, a question quite different from the one before us would be presented. This case and the Crandall Case, I think, in principle are identical. The contract in each ease was, at the time the maker of the checks received notice of the fraud, executory. In some respects Crandall v. Vickery is a stronger case for the holder than is the case at bar. In that case the drawer had sufficient funds in the bank to pay the checks first issued, and doubtless the checks would have been paid if they had been presented, in which case Crandall would have been a bona 'fide holder. In this case Miller, when he delivered the checks to Conrad, did not have sufficient funds in the bank to meet them. It appears that the amount of the checks exceeded his credit at the bank $1,100. There
I am clearly of the opinion that, under the circumstances, good conscience and fair dealing required of Miller, when he learned of the fraud, to notify the bank not to pay either of the cheeks. Having failed to do this, he ought not to be permitted to recover from Marks any sum of money in excess of the $100, with interest thereon, that he paid before he received notice of the fraud. '
The case is clearly distinguishable from the ease of Matlock v. Scheuerman, 51 Or. 49, 93 Pac. 823, 17 L. R. A. (N. S.) 747. In that case it does not appear that Matlock ever learned that the Scheuerman check was given for a gambling debt until the filing of the answer in which it was alleged that the consideration for the check was a gambling debt.