11 Conn. 213 | Conn. | 1836
The record presents two questions for our decision. 1. What is the contract, implied by law, in a blank indorsement of a negotiable note, made by a stranger to the note, for the benefit of the payee, to insure the maker’s responsibility, in cases where there is no other proof of the contract, except such as arises from the indorsement itself? 2. Is parol evidence admissible, as between the indorser and payee, to prove the contract which was in fact made, at the time of the indorsement, and which such blank indorsement was intended, by the parties, to consummate?
We had supposed the first of these questions had long since received an answer, by repeated adjudications of this court. At an early period of our judicial history, we find, that the legal nature and effect of a blank indorsement of a note not negotiable, became a subject of investigation and decision. It was always the law in this state, that such an indorsement, pri-ma facie, implies a contract on the part of the indorser, that the note is due, that the maker shall be of ability to pay it when it conies to maturity, and that it is collectible by the use of due diligence. On this point, the decisions have been uniform in Connecticut. And if it be said, that such construction of a blank indorsement is peculiar to this state, it is not the less definitely and judicially settled, because it is confined to our own jurisdiction. We have always rejected the doctrine that such an indorsement constitutes the indorser a joint maker of the note, or an absolute guarantor, creating a liability at all events, on the dishonour of the note by the maker, or a second indorser of the note, and liable only to the subsequent parties
The late Ch. Justice Swift, in his treatise on Bills of Exchange and Promissory Notes, published in 1810, p. 342. makes the following remarks: A blank indorsement contains a warranty that the note is due and valid according to the terms of it, that it is collectible with the use of due diligence, and that the maker is of sufficient ability to pay it. In his Digest, published in 1822, vol. 1. p. 434. he says, an indorsement in blank contains a warranty that the note is due and collectible with the use of due diligence, and that the maker is of ability to pay it. In the case of Bradley v. Phelps, 2 Root 325. decided in 1796, it was held, by the superior court, that in ordinary cases, the indorser of a note undertakes that the money shall be obtained from the promiser, when it falls due, by the indorsee, he using due diligence and taking the remedies which the law has provided ; but if the indorsee suffers it to lie, without taking any legal steps to secure or recover it, the indorser will be exonerated in case of a loss, unless the promiser was absolutely a bankrupt, when the note fell due. In Williams v. Granger, 4 Day, 444. decided in 1810, this court said, that an in-dorsement in common form, is a warranty that the note is clue and collectible, by using due diligence. In Huntington v. Harvey, 4 Conn. Rep. 124. decided in 1821, we said, by uniform and long continued usage in this state, as well as by re
In the argument, our attention was called to two cases, decided by this court, which were supposed to establish the doctrine that a blank indorsement of a note not negotiable, by a stranger, is an absolute guaranty that the note shall be paid at maturity, and that on failure of such payment, the assignee has an immediate right of action against the indorser, in all cases and under all circumstances.
One of these cases is Beckwith v. Angell, 6 Conn. Rep. 315. decided in 1823. On examining this case, we find no such point decided by the court. The controversy between the parties was confined to the question whether parol evidence was admissible to show that the indorsee agreed to become an absolute guarantor, and that the indorsement in blank was made in pursuance of, and to carry into effect that special agreement. It is true, the Judge who gave the opinion of a majority of the court, said, that “had the indorsement remained blank, it must have been considered, prima facie, a guaranty or nothing.” In what sense he intended to use the word “guaranty,” is not, perhaps, entirely obvious. If he meant nothing more than that the blank indorsement was a guaranty that the note should be collectible by the use of due diligence, it was a mere substitution of the term guaranty, for the term warranty. This is in accordance with the fair import of the language used; and is presumed to have been his meaning, especially when taken in connexion with what was
The other case referred to, is Wylie v. Lewis, 7 Conn. Rep. 301, decided in 1828. In that case, the note was negotiable, and was indorsed by the defendant in blank, while in the hands of the payee, on a sufficient consideration, and as additional security to the payee. The only point decided by the court, or intended to be decided, was one which required the same decision, whether the indorsement implied an absolute, or a conditional promise. The judge who gave the reasons, does indeed say, that “the legal import of this indorsement, is an absolute engagement to pay at all events.” This, however, was, at most, a mere obiter dictum, not necessary for the decision of the case; for he adds, “whether it imports an absolute, or a conditional engagement, it certainly does not imply the consideration and contract stated in the declaration.” We cannot suppose this court intended, in this short summary manner, and in a case not requiring it, to overthrow an usage almost coeval with the establishment of our judicial system, and sustained by numerousadjudi-cations of the highest authority.
We were also referred, by the plaintiff, to a case decided by this court, which, it was supposed, at least by implication, recognized as the law of this state, the doctrine that such a blank in-dorsement constitutes the indorser a maker of the note, though in the character of a surety, and that the indorsement may be declared on, in the same manner as a declaration is framed against the maker of a note. The case cited is Palmer v. Grant, 4 Conn. Rep. 389. decided in 1822. It, however, furnishes no support for the position which is advanced. It merely decided, where all the parties to the note were described in the body of it, thus, “ We Grant & Wattles as principals, and Daniel Carr and William Grant, surety, promise to pay Cyrus Palmer, or order, sixty-two dollars, with interest, value received”-that all the persons so named were joint promisers, although the sureties affixed their signatures, not in the usual place at the bottom of the note, but on the back of it. The only question discussed or decided, was, whether the mere fact that the sureties put their names on the back of the note, constituted them indorsers; or whether they, as well as the princi
After such a long usage, and with so many uniform decisions of this court before us, we again confirm them; and, in the hope that this fruitful topic of professional disputation will be treated as one not open to discussion, we repeat, that, by the common law of Connecticut, a blank indorsement of a note not negotiable, prima facie, implies a contract on the part of the indorser, that the note is due and payable according to its tenor, that the maker shall be of ability to pay it when it comes to maturity, and that it is collectible by the use of due diligence. “If” (as was said, by a former Chief Justice of this court,) “the maxim stare decisis is any thing more than a name; if the people of this state have the privilege of certain rules of action, and are not the sport of perpetual vacillation and ruinous uncertainty, the law of Connecticut concerning indorsements of notes before expressed, is stable and unquestionable.”
We improve the present occasion to repeat what this court has, in several cases, heretofore held as the obligation imposed on the holder of a note with such an indorsement, in order to subject the indorser.
As a general rule, he is required to pursue, with diligence, the proper legal measures for the recovery of the debt. This, however, is not required, if the maker, when the note comes to maturity, is insolvent, without property to pay it; and more than this, he may be obliged to perform, when he enters into a special contract to do more. If the maker is solvent, the hold-
We have, thus far, confined our remarks to indorsements of notes not negotiable. In the present case, the note in suit is a negotiable note, indorsed in blank, by the defendant, a stranger to the note, for the benefit of the payee, and not indorsed by the latter. Does our law regard such an indorsement, as subject to the same legal construction, and as imposing upon the payee, the same legal diligence, as if the note were not negotiable? We think it does so regard it; and that, in Connecticut, the indorsement in blank of a negotiable note, by a third person, for the better security of the payee, prima facie, imports the same contract as the blank indorsement of a note not negotiable. Until the year 1811, promissory notes were not negotiable in this state according to the custom of merchants. In that year, a statute was enacted, making all promissory notes, duly executed, to the amount of thirty-five dollars, or more, for the payment of money only, and made payable to any person or persons, or his, or her or their order, or to the bearer, assignable and negotiable according to the custom of merchants, and the law relating to inland bills of exchange. Since that time, numerous decisions have been made, in which it seems to have been assumed, by the court, as undoubted law, that these blank indorsements of the description mentioned, were subject to the operation of one uniform rule. Indeed, in some of the cases, the notes were negotiable, and the previously well settled doctrine relating to indorsements of notes not negotiable, were applied to them. There can be, we think, no distinction properly made between them, in this particular: and we give our sanction to the doctrine stated by the late Ch. J. Hosmer, in the ease of Beckwith v. Angell, 6 Conn. Rep. 323, 4. (although we differ from him on other points which
In view of the principles thus stated, we concur in the decision made by the judge, who presided at the trial of this cause at the circuit, that the note offered in evidence by the plaintiff, with the blank indorsement of the defendant, was not admissible in support of the count in the declaration, charging the defendant as a joint and several promiser of the note, nor, accompanied with the other evidence, in support of that count, because the blank indorsement of itself does not imply the contract alleged in that count: nor does the evidence offered, tend to prove such a contract as is alleged in the first count.
The record, however, states, that the plaintiff, in support of the second and third counts, offered the note, together with pa-rol evidence tending to show, that the defendant, at the time of indorsing the note, did in fact assume, promise and guarantee the payment of the note, in the manner set forth in the second and third counts; that such was the understanding of the parties; and that such an agreement having been actually made, it might lawfully be written over the blank indorsement. An objection was taken, by the defendant, to the parol testimony offered, on the ground that the legal import of the indorsement could not be varied, by parol evidence. The court sustained the objection, and excluded the evidence.
In the rejection of this testimony, the judge, whatever may have been his own opinion, doubtless considered himself bound, by the latest adjudication at the circuit of which he had know
It has been urged, that a decision upon this point becomes unnecessary, inasmuch as the motion states, that “no evidence was offered by the plaintiff, that the defendant ever gave the plaintiff any authority to fill up the indorsement, other than what was implied from the indorsement itself;”-that the parol testimony, which was rejected, was merely of conversations antecedent to the indorsement, which were merged in the written in-dorsement, and therefore, properly rejected:-or if such is not the fair construction of the motion, still, as no authority was proved to have been given, it is to be presumed the defendant did not intend to give, and did not in fact give any authority to vary the prima facie legal import of his indorsement; and in this view, the testimony was rightly rejected. We cannot yield our assent to either view thus taken of the motion, by the defendant, It is to receive such a construction as the words, taken in their ordinary sense, and by fair interpretation, require. The motion expressly states, that the evidence offered was of an agreement actually made, by the defendant, at the time he indorsed the note, corresponding with the contract set up in the second and third counts. It was, then, an offer to prove what was the real contract between the parties; that it was not reduced to writing in form, but that in pursuance of it, and to carry it into effect, the defendant indorsed his name in blank on the note. By the expression in the motion, “no evidence was offered of any authority to fill up the indorsement,” we understand, that no express authority was given to that effect, in words: but it would be a harsh and rigid construction of the motion, were we to assume, that the defendant refused to permit the indorsement to be so filled up, and that the plaintiff did not claim that, the evidence offered, conduced to prove an implied authority to make the indorsement correspond with the contract it was designed to express. We think there is no reasonable doubt such was the precise offer of the plaintiff, and such the tendency of the evidence which he sought to present to the jury.
We are now prepared to consider the question, whether this evidence should have been received. It is one of some impor
Two objections have been urged against the admission of this testimony. It is insisted, that it contravenes the legal import of the indorsement, which cannot be varied by parol evidence; and that it is in opposition to the statute of frauds and perjuries.
1. The first objection assumes, that a blank indorsement, when intended as a warranty, necessarily and in all cases, imports a warranty of a particular character; that it is to be read and understood as though that precise contract was in writing over the signature of the indorser; and therefore, it cannot be varied, by oral evidence. This, we think, is neither more nor less than a petitio principii. It takes for granted the very point in issue, whether a blank indorsement is conclusive, or prima facie evidence only of the contract which was in fact made; and assuming it to be always conclusive, applies to it the well established rule, that parol evidence is inadmissible to con-troul, alter, or contradict a written agreement. In our opinion, such an indorsement is but prima facie evidence of the contract expressed by it. In the absence of all proof, it is to be presumed to have been made with reference to its legal meaning. If no other agreement was in fact made, but such as the law will imply from the indorsement itself, such indorsement ceases to be equivocal, and full effect is to be given to its legal signification. The reason why, in such case, the evidence of the contract is to be derived from the indorsement, is, that it is a fair presumption the blank indorsement, when unattended with any different contract in fact, was intended by the parties, to express their whole meaning. The law acts upon the reasonable supposition, that where both parties acquiesce in giving and receiving a blank indorsement merely, and make no other or different contract than such an indorsement implies, they are content to acquire no other rights, and be subject to no other liabilities, than the law implies from the signature of the indor-
We might refer to many other cases similar to those we have cited, but we deem it unnecessary. The principle which all of them declare and sustain, is, that as between the immediate parties, a blank indorsement is prima facie evidence only of the contract which they have made, and like all other such legal presumptions, may be explained, by parol evidence; for it neither controuls, alters, nor contradicts the written indorsement, but is entirely consistent with it.
2. A second objection is urged against the reception of the oral evidence, derived from the provisions of the statute of frauds. It is insisted, that a blank indorsement, when intended as a warranty, is a promise, upon condition, to pay the debt of another, which, to be valid, must be in writing; and that the testimony offered, was an attempt to prove on the defendant, an agreement, by parol, to pay another’s debt, and falls precisely within the words and spirit of the statute. We think this ought not to prevail. It has no foundation in principle; nor is it supported, by any precedent, to which we have been referred, or have been able to find. On the contrary, it has been repeatedly repudiated. The indorsement, being in writing, and in blank, is, of itself, an authority to write over it, the agreement it was designed to express. “Proof of the name, is proof of the indorsement." There is a memorandum of the contract, signed by the party to be charged by it; or rather, the contract itself is so signed. We do not perceive, if the present objection should be sustained, but that in every case of a blank indorsement, the statute of frauds and perjuries would be an insuperable bar to the admission of parol evidence to prove a limited contract. Indeed, it must have the effect to exclude all such evidence, even when the indorsements are in full: and, yet, we all know it is every day’s practice to receive oral testimony
It is, however, urged, that whatever may have been the decisions in Great-Britain, or elsewhere, we have, in Connecticut, a law of our own, different from what prevails there; that by usage, as well as by judicial decisions, we have changed the common law, and established a different rule; and that, in this state, a blank indorsement has a fixed, definite legal meaning and import, which no extrinsic agreement of the parties can vary, and which precludes the insertion of any special contract repugnant to the legal nature of such an indorsement. We are not aware, that any such usage has ever prevailed in this state; nor have we been referred to any decisions, which, it is said, have effected such an important change in the rules of the common law. Some extra-judicial opinions, foreign to the points adjudicated in the cases where they are found, have
A reference to our own reports, and the commentators on our law, is all which we deem it necessary to add. Ch. J. Swift, in his System, published, 1796, p. 159. says, the courts have determined, that parol evidence may be admitted to explain the meaning of a blank indorsement; for until it is filled up, by the indorsee, it has no certain import. In his treatise on Bills of Exchange, pp. 342, 3., he says, in the case of an indorsement in blank, before it is filled up, and while it remains in the hands of the first assignee, the assignee will be at liberty to show, by parol proof, that at the time of indorsing the note, there was an agreement between the parties, that he should not warrant the note, and that the assignee should take it at his own risk, or that it was indorsed and delivered to the assignee as agent of the assignor, to collect and account for it to him. In his
Some minor objections were made to the admission of the evidence which was offered, founded on supposed variances between the proof and the allegations in the different counts comprising the declaration. We do not consider it necessary to make any other answer to them, thn that they have not been overlooked by us, and that we do not think they can be sustained on principle ; nor have they been, supported by authority.
Upon, the whole, we are of opinion, that the court below should have received the testimony, which was offered in support of the second and third counts of the declaration ; and in consequence of its rejection, a new trial is advised.
New trial to be granted,.