Richards v. Barlow

140 Mass. 218 | Mass. | 1885

Holmes, J.

In the absence of any evidence to the contrary, we must assume that the question whether the note in suit was negotiable is governed by the common law, as amended or declared by the St. of 3 & 4 Anne, e. 9; see Commonwealth v. Leach, 1 Mass. 59, 61; Goodwin v. Robarts, L. R. 10 Ex. 337, 350; and we must assume that that law is as declared by the Massachusetts decisions. It has been decided in Massachusetts that a note payable at a future day certain, or earlier at the option of the holder, is not negotiable. Mahoney v. Fitzpatrick, 133 Mass. 151. See Stults v. Silva, 119 Mass. 137. The obligation to be gathered from the four corners of the present instrument is similar. The promise, taken by itself, is absolute, to pay in ninety days from date; but the power of attorney on the face of the note authorizes a confession of judgment “ at any time hereafter,” and we must construe these words as meaning, at any time after the date. See Adam v. Arnold, 86 Ill. 185. We cannot distinguish such a case from Mahoney v. Fitzpatrick. For this reason, without considering whether there are any others, we must decide that the note was not negotiable. We do not rely upon the fact that it seems to have been under seal, because there was some difference between counsel as to the meaning of the bill of exceptions.

The ruling that an action could not be maintained against Wilson on the judgment recovered against him in Illinois was erroneous. The form of the ruling shows that it was not made on the technical ground that there was a misjoinder of counts against Wilson alone and against Barlow and Wilson jointly. No such objection seems to have been made at the trial, and no attempt is made to support the ruling on that ground. But it is argued that the jurisdiction of the Illinois court depended on the power of attorney contained in the note; and that, if the note was not negotiable, the scope of the power—“to confess a judgment without process in favor of the holder of this note ” — was confined to Jeffery, the payee. But we think it clear that the word “ holder ” was used in a sense which embraces any indorsee of the note. See Ransom v. Jones, 1 Scam. 291. The form of the instrument plainly imports that it was drawn on the assumption that it would be negotiable, and, even if this assumption was erroneous, it must be taken into account none the less, if necessary, in interpreting the meaning of the power. It is not argued that the power of attorney was invalid, or that we are not to assume proceedings in accordance with its terms to have been regular. See Keith v. Kellogg, 97 Ill. 147.

The jurisdiction of the Illinois court being established, we should be bound to respect the judgment, even if there were error of law apparent on the face of the record. But we cannot say that there is any such error, because, apart from other reasons, we cannot say that Illinois may not have statutes authorizing the assignee of a chose in action not negotiable to recover in his own name, although no such statute was put in evidence. See 111. Rev. Sts. e. 98, § 4; o. 110, § 66.

If there is a statute as supposed, the jurisdiction might perhaps be supported, even if the word “holder” were confined to Jeffery, the original payee. For we are not prepared to say, that if, for any reason, he found it convenient to take a judgment in the name of an agent, that would not still be a judgment in his favor within the meaning of the power, and it does not appear that the plaintiff was not acting on his behalf.

Exceptions sustained.