52 Vt. 372 | Vt. | 1880
The opinion of the court was delivered by-
The plaintiff is not a party to the promissory note which is claimed to be the basis for a recovery in his favor. By the note the defendants jointly and severally promise to pay N. D. Wait, or order, the sum therein named. Wait indorsed the note, “Pay to H. S. Cutler.” Cutler indorsed it, “Pay I. S. Jennison.” Jennison indorsed it, “ Pay to the order of C. P. Allen, and I hereby waive demand and notice.” The referee has found that the plaintiff testified that he owned the note, and had it at the time the suit was brought, but has failed to find whether the fact is as testified to. He further finds that previously to the commencement of the suit, the defendants offered to pay the plaintiff $-on the note. On these facts is the plaintiff entitled to maintain this suit ? We think not. The referee has not found that the defendants promised to pay the note to the plaintiff, nor has he declared upon a special promise from the defendants to pay him the amount of the note. Hence, it does not fall within “ the principle decided in Moar v. Wright, 1 Vt. 57 ; Bucklin v. Ward, 7 Vt. 195 ; and Hodges v. Eastman, 12 Vt. 358 ; in all of which it was held that if the maker of a note expressly promise to pay his note to the holder, the holder might sue on such promise in his own name, though he could not sue on the note by reason of its not being negotiable, or not being legally transferred to him.”
Neither can he maintain the action upon the note directly, because it is not legally transferred to him, and he has not become a legal party to it. This principle is elementary. To quote from Story Prom. Notes, s. 120 : “ If a promissory note is originally payable to a person or his order, then it is properly transferable by indorsement. We say properly transferable, because in no other way will the transfer convey the legal title to the holder so that he can at law hold the parties liable to him ex directo, what-,
But the plaintiff urges that such holding is, in this case, the sacrifice of justice to a technicality. We do not regard it in that light. Such a change in commercial law as he contends for, would be the substitution of experiment for the wisdom of ages,
Judgment reversed, and judgment on the report for the defendants to recover their costs.