Sanford v. Norton
14 Vt. 228
Vt.
1845
Check Treatment

The opinion of the court was delivered by

Williams, Cur. J.

This case was before this court in February, 1842. I was not present at that time. The judgment, which was then reversed,, had been made at the county court, when I presided, *292and, as the views which I then entertained have some influence on me in the decision which the court have at this time made, it may be proper to state them, without any disposition to go abreast of the judgment of this court, reversing the former decision of the county court.

The note was originally made by Caleb Sayles, payable to Uriah Edgerton, or hearer. Edgerton’s name was not on the note, but the names of Norton, the defendant, and Raymond. Under these circumstances I considered that the plaintiff might recover against the defendant, as maker, and that, as no evidence was given to show that there was any fraud, or force, in obtaining the note from the maker, or holder, it appeared to me that the plaintiff was not called on to prove that he gave a consideration for the note, or that it was indorsed to him while current; and, until this was done, the defendant was not at liberty to contest with the plaintiff his liability on the note, or to change th e, prima facie character of the transaction by any evidence of what transpired between him and Raymond, the knowledge of which was not carried home to the plaintiff. Both of these positions were established by this court in the case of Flint v. Day, 9 Vt. 345, and in Nash v. Skinner, 12 Vt. 219. In the former case declarations, made by Day at the time he signed the note on the back, were not allowed to change the character he assumed, as it respected a person to whom they were not known. In the latter, all the cases, both in this State, in Massachusetts, and in New York, were elaborately considered by the counsel, and the judge, who delivered the opinion of the court, lays it down as settled law in this State, established by decisions, “ that when a person, not a party to a note, signs his name upon the back, without any words to express the nature of his undertaking, he is considered as a joint promissor with the other signersand the court farther decided that any conversation, to the effect that the defendant was to stand as an indorser, and not as a maker, could not prejudice the payee in that note, not carried home to his knowledge ; and surely, if they could not prejudice the payee of the note, they ought not to affect an indorsee. The case of Strong v. Riker, 16 Vt. 554, is to the same effect.

That this principle, of considering that a person, not a party, who *293indorses a note, is to be considered as maker, is not confined to notes not negotiable, we find in the cases before mentioned, both of which were on negotiable notes, and also in the cases of Ulen v. Kittredge, 7 Mass. 233; Moore v. Bird, 11 Ib. 436=; Nelson v. Dubois, 13 Johns. 175; and in the case of Dean v. Hull, 17 Wend. 214, it was considered, that, when a person is privy to the consideration, and indorses a note, though negotiable, if not negotiated, he'may be charged directly as maker. I think, therefore, that, in this State, it has been established, and is now, unless it is considered as changed by the determination made in this case when formerly before the court, that the defendant was liable as joint principal, and, though it may be admitted, that, as between the parties to the contract, this relation may be varied by parol proof, yet as to others, having no knowledge, the apparent engagement and obligation must be considered as the real one.

The parol proof, which was offered on the former trial, of the receipt of Raymond, and the other facts, it appears to me would not have been admissible, unless upon the principle that the plaintiff, on its admission, would have been obliged to show that he paid a consideration, and took the note while current. To require this would entirely contravene the policy of the legislature, when they repealed the former law, subjecting negotiable notes to certain infirmities, and adopted the common law, or the law merchant, in relation to commercial and negotiable paper. Whatever I might have thought of the policy of this action of the legislature, I feel bound to give effect to their enactments, and, whatever I find the law to be, 'so to declare it; and if I find a decision, which I might consider as more congenial to my views of what the law ought to be, yet, if it is not the law, I do not feel at liberty to adopt it, — which would be, in effect, to make, and not declare, the law.

The case of Heath v. Sansom, 2 B. & Adol. 291, decided that when, from the defect of consideration, the original payees cannot recover on a note, or bill, the indorsee, to maintain the action against the maker, as acceptor, must prove a consideration given by himself, or by a prior indorsee, though he may have had no notice that such proof would be called for. This decision was made by a majority of the court, Parke, J., Assenting. This decision stands *294solitary and alone, and we learn in a subsequent case, by the remarks of Patterson, J., who was one of the judges who concurred in the decision, that it lead to a consideration of the subject by the court, the result of which has b'éen a decision adverse to the majority of the judges in that case, and in conformity to the views of Parke, J., who dissented. In a note to Chitty on Bills, 56, the opinion of Parke, J., is considered as conformable to the law; and it is stated, that, in the London Law Magazine, the decision in that case, is considered as unfounded in principle and opposed to authority. The cases of French v. Archer, 2 D. & R. 130; Stern v. Yglesias, Ib. 252; Low v. Clifford, 5 M. & Scott 95; Brand v. Roberts, 1 Bingh. N. S. 465; Whittaker v. Edmunds, 1 M. & Rob. 365, and the opinion of the chancellor of New York, in Morton v. Rogers, 14 Wend. 582, may all be considered as disregarding and overruling the case of Heath v. Sansom.

The case of Sturtevant v. Lord, 43 E. C. L., 61, and tbe case of Arbouin v. Anderson, 41 E. C. L. 642, seem' to settle the doctrine, as now prevailing in England, that the owner of a bill, or note, is entitled to recover upon it, if he come by it honestly, that that fact is implied, prima facie, by possession, that, to resist the inference so raised, fraud, felony, or some such matter, must be proved, and that it is not sufficient to show a want of consideration. The case of Charles v. Marsden, 1 Taunt. 224, is recognized and re-established. The same position, which now prevails in England, is recognized by the Supreme Court of the United States in Swift v. Tyson, 1 Pet. 1. I feel warranted, therefore, in saying, that, if the doctrine of the case of Heath v. Sansom is established by the decision to which I have adverted, I regret it, because I think it is not recognized as law any where else. I cannot see, that, in the case of Bassett v. Dodgin, 25 E. C. L. 21, any confirmation of the case of Heath v. Sansom is given, or that it was spoken of with approbation, or disapprobation; but, so far as the decision was had in this latter case, it was rather in opposition to, than in approbation of, that case.

On the trial of thisr case at the last county court, the testimony, which was rejected at' the former trial, was admitted; and I am to suppose that it established the fact, that the defendant was not a *295maker, or guarantor, but an indorser. For I cannot suppose, that, when a man, not a party, indorses a note, he is to be considered primafacie a joint maker, according to our previous decisions, and prima facie an indorser, as now established. Without in any way impugning the decision made in this case, when it was formerly reported, and taking it for granted that the testimony, which had been offered, should have been admitted, and on the facts now in the case, I think the plaintiff entitled to recover on the whole case, as presented. To this plaintiff the defendant was apparently a joint promissor. The plaintiff received the note for a valuable consideration, it was indorsed and delivered to him before it was due, and as to him it was not open to the inquiry when the defendant’s name was on the note ; he had no notice of the transactions between the defendant and Raymond, and there is no defence to the note, and the plaintiff has received the note while current, and paid a consideration therefor.

This was not the ground on which the case was put at the last trial in the county court, but the defendant was treated as an indor-ser; and on this ground we are of opinion the defendant was rightly charged; and although I do not feel very clear and decided in this view, I yet acquiescp and agree with my brethren, that, if the defendant is to be considered as an indorser, on the facts which appeared before the court, he was liable as such. In this aspect of the case, Sayles was the maker of the note, and it was incumbent on the plaintiff to present the note to him, when it became payable, and, on his neglect to pay, to give due notice to the defendant. The question is, whether the note was so presented for payment as to charge the indorser ; for if it was, there is no doubt but that the defendant was duly notified.

The charge of the court was, that the evidence, if believed, was sufficient to entitle the plaintiff to recover; and in this opinion we coincide with the court below, without deciding whether all the views expressed in the charge were correct, or not. At the time the note was executed, Sayles, the maker, resided in Wrentham, Massachusetts ; but in the spring of the year, when this note was indorsed to the plaintiff, or about that time, Sayles had commenced a residence in Bennington; he began to keep house with his son *296and daughter, and his daughter was his housekeeper, and he remained there personally until the July following; and the dáughter and son continued to keep house there, the son acting'as the agent of Sayles, at the time when the note fell due, and when the demand was made. It is not found that this residence was ever abandoned by Sayles, the maker, or that he gave up the idea of returning to his house here, and attending personally to his concerns; but the contrary is to be inferred from the facts in the case. It was therefore a question, not susceptible of being made perfectly clear, where was, in point of fact, the actual residence of Sayles. While he resided in Bennington, keeping house, that was his residence, notwithstanding the other part of his family had not removed there; and although a personal demand on the maker, any where, would have been sufficient to charge the indorser, we are of opinion that the demand in this case was equally sufficient, within the spirit of the cases read at the bar by the plaintiffs counsel. The case fi;om the 10th Martin’s Rep. is very much in point.

The judgment of the county court is therefore affirmed.