Southwick v. Ely

15 N.H. 541 | Superior Court of New Hampshire | 1844

Woods, J.

The plaintiffs, in order to maintain this action,

must be shown to have an interest in the note in suit, or to have brought the action for some person having an interest therein, with authority to collect and receive the avails as the payee of the note, or some one showing himself entitled, by reason of an assignment or delivery to him by the payee. Phelps vs. Mahurin, 6 N. H. Rep. 535.

Have the plaintiffs shown themselves to have any interest in the note, or the suit to have been commenced in behalf of any one having an interest, and authorized to collect and receive the avails of the note ? It is clear that the plaintiffs were, in the reception of the note, the agents of the payee, with power to collect and pay to Selden whatever might be thus collected. That power, however, was not executed, and was revocable at the pleasure of Palmer, the payee, as between the plaintiffs and himself, who delivered the note to them, and was revoked by virtue of the demand made by Burns for the re-delivery of the note. Burns was duly authorized by Palmer to make the demand, and that authority, not being questioned at the time of the demand by the plaintiffs, was effectual for the purpose of it.

But the plaintiffs contend that Selden, by reason of the deposite of the note with them, and the authority to pay the avails of the note to him when collected, acquired an interest in it, and that by reason of it they were obliged to endeavor to collect the note in order to protect themselves from loss accruing from what would otherwise be deemed laches, and charge them with any loss arising therefrom. .But no principle of law has been stated upon which it is shown that Selden is to be treated as interested in the note, or the plaintiffs as being liable to Selden for laches in failing to collect it, nor any authority cited to that effect. And we are unable to see upon what legal or equitable ground such an interest can bo supposed to rest.

It does not appear that Palmer was indebted to Selden, or that Palmer had in any way contracted to let him have an interest in the note, or that any sum has been paid to Palmer, or is agreed to be paid, for any interest therein, or that the plaintiffs have in any way contracted with Selden to hold the note for him and in his behalf, or even that Selden knows of the existence of the note. Selden, then, upon the facts shown by the case, could have no claim to the note as against Palmer, or to the avails of it as against the plaintiffs, or to damages against them on the ground of laches. He had neither contracted for nor accepted any interest therein. For aught that appears by this case, a payment to and acceptance by Selden of what ought to have been collected, would at most have created an indebtedness for the same from Selden to Palmer. Palmer then alone had an interest in the note.

We do not forget that it was argued that the possession of the note by the plaintiffs was prir/iá facie evidence of ownership in them. And no doubt such is the rule of evidence in relation to the possession and ownership of promissory notes. But such proof is only primd facie, and may be rebutted and explained by other evidence. And so it is in the present case. The case finds the circumstances under which the plaintiffs become possessed of the note, and shows that no interest in fact passed to and remained in them at the time of the commencement of this action.

Judgment for the defendants,