6 Or. 254 | Or. | 1877
Tbe liability of tbe respondent, Miller, in tbis case must be ascertained by tbe writing-offered in evidence, including
There was also further evidence in the case tending to show that Moore, at the time of this correspondence, was cashier of the bank and' a stockholder in the institution, but since that time he had withdrawn and had received in his settlement with the bank and as part of his share of assets, the Minear note and the note sued on — both representing, in fact, one debt and entitling the holder to payment of only one of the sums of money specified in them. The note sued on was regularly and properly indorsed by the payee; but the Minear note, through some oversight, was delivered without any indorsement whatever’ by the- payee. The Minear note was delivered to the plaintiff by the payee for a valuable consideration, along with the note sued on, and the plaintiff was the sole party interested in the money due upon these notes.
' With this testimony before the court below, it was not error to instruct the jury as a general proposition that parties to promissory notes may, as between themselves, make a separate contract as to the liability assumed by which their rights are to be governed, or they 'may make a contract as ’ for an indorsement upon a separate piece of paper and attach the same to the note.
The instruction asked and refused was this: “If you believe from the evidence that plaintiff is the owner and holder of the Minear note, that will be sufficient for plaintiff to maintain an action against defendant on his note without the indorsement of the Minear note.”
Two propositions are asserted by these constructions: one that the plaintiff must be the owner and the holder of both notes, in order to maintain this action; the other that the ownership of the Minear note, for the purposes of the action, must be created and exist by indorsement of the
The question then, is, can Moore become the owner of the Minear note, it being payable to the order of the payee without the indorsement of the payee ? The court below held, and the counsel for respondent here contend that he cannot, and we are cited to a provision of our statute, and to elementary works on bills and notes, besides several reports, that employ language mainly the same as that used in the instruction given. But those cases and rules have reference to purely legal titles, to negotiable paper, and legal remedies thereon, as enforced under the law merchant. It does not follow from these citations that a party who pays valuable consideration for a note or bill, payable to order, and takes a transfer of it by delivery only, without indorsement, may not be deemed in law for many purposes the owner. By such a transfer, it is true, the holder does not take the paper clothed with all the rights of aú indorsee of negotiable paper, transferred in the usual manner and course of business. He nevertheless could, under the old law, sue upon it in the name of the payee, and was so far recognized as owner as that he might lawfully collect and receive for his own use the money due on it; but, different from a regular indorsee, he would doubtless be subject to the equities subsisting between the maker and the payee. Undár the New York code, and it is presumed wherever that code has been adopted, such a note payable to order may be transferred by delivery without indorsement, so as to vest the property in it in the purchaser and holder, and to entitle the holder to sue upon it in his own name. (Edwards on Bills, 286; 11 Barb. 620; 12 How. Pr. 166.) And it would seem that such a holder of a note for which he has paid value, would have a good, equitable title that would sustain a suit to enforce collection, and to establish his right to the money against both the maker and the payee.
The code of this state has preserved to a considerable extent the distinction between law and equity jurisdiction and modes of proceeding; and whether or not Moore could
Having such a title to the Minear note and a perfect legal title to the note sued on, we think Moore can maintain this action without having the indorsement of the payee upon the Minear note.
It follows that there was error in the instructions given and in refusing the instructions asked, and the judgment will have to be reversed and a new trial ordered.