39 Cal. 345 | Cal. | 1870
delivered the opinion of the Court, Temple, J., and Rhodes, C. J., concurring :
This is an action by an assignee against the makers of a certificate of deposit, for the sum of $1,500 in United States gold coin, which is set out in the complaint, as follows :
“$750. Bank of D. O. Mills & Co., )
“Sacramento, October 18, 1866. }
“George Rosenbaum has deposited in this bank $1,500, payable to himself or order, in United States gold coin, on return of this certificate properly indorsed.
“D. O. Mills & Co.”
This instrument possesses all the requisites of a negotiable promissory note, payable .on demand—and with respect to the questions involved in the suit, must be regarded and treated as s'uchi " "
. The answer substantially admits the execution of the certificate, as charged in the complaint; denies that the plain
The certificate is to all intents and purposes a certificate for $1,500 in gold coin. The superscription on the upper left hand corner, in figures, is but a memorandum, and in no manner serves to vary, change, modify or control, the written words found in the body of the certificate, which distinctly specify the sum, for which the certificate is issued, to be $1,500. The most that can be claimed for this memorandum, in figures, is that its presence on the face of the certificate, serves to create a patent ambiguity; but this cannot be helped by averment, or evidence aliv.nde. The words written in the body of a certificate, bill or note, when plain, definite and certain, must control, without regard to the superscription in figures. (Chitty on Bills, 11 Am. from 9 Loud. ed. pp. 149-160; Story on Bills, Sec. 42; Story on Prom. Notes, Sec. 21; Saunderson v. Piper, 5 Bing. N, Cas. 425; Mears v. Graham, 8 Blackf. 144; Payne v. Clark, 19 Mo. 152.)
Although the mistake and want of consideration alleged in the answer, might be available as a defense pro tanto, as between the makers and the original payee, or an indorsee
A negotiable bill or note, indorsed and transferred to a bona fide holder for value, without notice by the payee thereof, before maturity or dishonor, actual or constructive, is relieved of all equities existing between the drawer or maker and the payee, and any subsequent assignee receives the same in like manner, relieved of all such equities. (Story on Bills of Ex. Secs. 187-188; Story on Prom. Notes, Sec. 178, and authorities there cited; 3 Kent Com. * 92, top page 113; Chalmers v. Lanion, 1 Camp. 383.)
A note payable at a particular time, is presumed to be dishonored after maturity. A sight bill or note payable on demand, is presumed to be dishonored after a reasonable time shall have elapsed after its date, and if indorsed and transferred before such reasonable time has elapsed, the indorsee and holder bona fide, for value takes the same, relieved of all equities existing between the original parties thereto. What such reasonable time is, depends upon the circumstances of each case, and is a question of law to be determined by the Court. (Chitty on Bills, p. * 379 ; Story on Bills of Ex. Secs. 232, 325; Story on Prom. Notes, Sec. 207, Note 1; 1 Parsons on Contracts, 2d ed. p. 217, Note—; 1 Parsons on Notes, and Bills, pp. 264-266.)
Although the maker of a negotiable promissory note, payable on demand, at common law is liable to a suit thereon, the moment after the same is executed and delivered, and the Statute of Limitations immediately commences to run against such note, still, it is not regarded as overdue or presumptively dishonored, until the lapse of a reasonable time after its date; and we have been unable to find any case
In the present case, the certificate was indorsed in blank, and transferred by the payee on the same day of its date, and on the evening of the same day, after dark, was, by the first indorsee, delivered to plaintiff, with instructions to credit the same to the account of Ewing M. Skaggs, which plaintiff did, on the following morning, about eight o’clock, October 19th, by crediting Ewing M. Skaggs in account, who was then indebted to him in the sum of $200, with $1,500, and thereafter, during the forenoon of the same day, presented the certificate to defendants for payment. At the time the certificate was indorsed and delivered to Eli M. Skaggs, on the 18th of October, no sufficient time had elapsed since its date, to authorize a presumption of dishonor; hence, the special defense set up in the answer could not avail, as in case of indorsement after maturity and dishonor.
The question then arises, whether Eli M. Skaggs, the first indorsee, was a bona fide holder for value.
On the cross-examination of plaintiff’s witnesses, by defendants, it appeared that the payee indorsed and delivered the certificate to Eli M. Skaggs, at the rooms of said Skaggs, in the City of Sacramento, which rooms were occupied by said Skaggs for gambling purposes; that his business was gambling, and that the assignment was made in a gambling transaction; that Skaggs paid for the certificate
The evidence very clearly establishes, that the certificate was issued by the defendants, upon the deposit with them •by George Bosenbaum, of $750 only, and that the sum stated in the body of the certificate as the amount deposited, was by defendants inadvertently and by mistake written $1,500, instead of $750; and this the payee of the certificate must have known, when he indorsed and transferred the same to the first assignee, on the afternoon of the day of its date; but the defendants, by their mistake and inadvertence,'furnished him the means by which he was enabled to perpetrate a fraud upon innocent parties, if the special defense set up in the answer should prevail against the well settled princi
It follows from these views, that the evidence fails to sustain the judgment; and that the judgment and order denying a new trial, must be reversed and a new trial granted.
So ordered.
Crockett, J., delivered the following opinion, Wallace, J., concurring:
I concur in the judgment, on the ground that the proof fails to show that the certificate was lost by Bosenbaum at any of the games prohibited hy the Act of 1863, and that Eli M. Skaggs, when he received it, had notice of that fact. If it had appeared on the trial, that Bosenbaum was engaged in one of the prohibited games, and had lost the certificate in that manner, and that Skaggs had notice of this fact when he took it, he was not a purchaser in good faith, and the defendants could have made, as against the plaintiff, any defense they could have made as against Bosenbaum.