| Mo. | Jul 15, 1843
delivered the opinion of the Court.
Shipp & Woodbridge brought their action in the Court of Common Pleas against Woods, Stacker & Co., and judgment being there given against them, they prosecute their writ of error, to reverse that judgment.
The declaration states that Woods, Christy & Co. made their certain promissory note in writing, bearing date the 28th day of December, in the year 1841, and thereby promised to pay, four months after the ,date thereof, to the order of the Said defendants, Woods, Stacker & Co., negotiable and payable at the office of the Missouri Mutual Insurance Company of St. Louis, nine hundred and. twenty dollars, without defalcation or discount, and for value received, and then and there delivered the said promissory note to the said Woodfe and Stacker; and the said Woods and Stacker endorsed and delivered the promissory note, to the plaintiffs, Shipp & Woodbridge; and that when the money became due, the ■ defendants, Woods and Stacker, did not pay, &c.
The defendants pleaded the general issue, and two special pleas, in substance as follows, viz.: that the note sued on was endorsed and delivered to the Mutual Insurance Company at the time of its date, which company then and there became, and continued to be, the owner and holder of the same after it became due; and when it became due, said Woods, Christy & Co., the makers thereof, then and before having the sum of nine hundred and fourteen dollars on deposit with the said company, went thither and tendered six dollars in money, and also tendered their check or order for the amount of that deposit, both together making the amount of the note, but that the said insurance company refused to receive the payment, and that the defendants have ever since been ready and willing to pay the said note in the manner aforesaid, and still are ready, &c.; and they aver that, at the time the plaintiff acquired the note, they had notice of the offer by the defendants to pay, &c.
The note on which this declaration is framed is negotiable under our statute.— See the. 6th section of the act concerning bonds and promissory notes, which declares such notes to be negotiable and payable in like manner as inland bills of exchange; Digest of 1835, p. 105.
Chitty says, “there is a material distinction in the effect of a transfer before a note is due, and one made after that time; in the first case, the transfer carries no suspicion on the face of it, and the assignee receives it on its own intrinsic credit, nor is he bound to inquire into any of the circumstances existing betwixt any of the previous parties to the bill, as he will not be affected by them,” &c.
But when a transfer of a hill is made after it is due, whether by endorsement or mere delivery, it has long been settled, that at least it is to be left to the jury, upon the slightest circumstances, to presume that the endorser was acquainted with the fraud, or had notice of the circumstances which would have affected the validity of the bill in the hands of the holder thereof, at the time it became due, &c. —Chit, on Bills, 242, 243.
The statute above cited having declared that notes such as this here declared on “shall be due and payable as therein expressed,, and shall have the same effect, and be negotiable in like manner, as inland bills of exchange,” the plaintiffs in this action below, and appellants here, will be held to be informed that defendants tendered the money due on the bill or note sued on as in the special plea stated.
The Court of Commdn Pleas, then, as it seems, committed no error in overruling the demurrers to the special pleas, and the parties to the record having agreed that judgment in this Court may be entered up as if the sum of six dollars due, over above the money of the defendants on deposit in the office of the said company, were already paid, the Court now affirm the judgment of the Court of Common Pleas.