Thompson v. Rathbun

18 Or. 202 | Or. | 1889

Strahan, J.

Numerous assignments of error are presented by the notice of appeal, but only such as affect the conclusions reached will be noticed in this opinion.

1. The first objection presented is the defendant’s exception to the introduction of the note above set out in evidence. It is undoubtedly true that under the Code it is sufficient for the party to prove the substance of the issue; that is, the material and essential facts necessary for his recovery. Ordinarily, immaterial and non-essential allegations need not be proven, but may be entirely disregarded, or treated as surplusage; but it is still true that a party must prevail upon' substantially the case made in his pleadings. He could not, under the former practice, allege one cause of action and recover on an entirely separate and distinct cause of action, nor can he do it under the Code. In this case the plaintiff described a note as his cause of action, which was executed and delivered to the Portland Savings Bank. By this allegation is meant a note that was made payable to the Portland Savings Bank by name, or to bearer, or by some other equivalent expression by which the Portland Savings Bank could be clearly identified as the payee. This the note offered in evidence failed to do; and this was such a departure from the plaintiff’s allegations that I think the court erred in receiving the paper in evidence.

2. The other objection was equally well taken. One of the essential requisites of a promissory note is certainty as to the payee. If no payee is named, then it is a defective and incomplete writing, until some bona fide holder shall make it complete by the insertion of his own name as payee. There is no doubt that a promissory note may be issued with a blank for the payee’s name, which may be filled by any bona fide holder with his own name as payee, and then it will be treated as a good promissory note, provided such authority be exercised within a reasonable time. Story on Prom. Notes, § 10; Seay v. Bank, 3 Sneed, 558; 1 Daniel, Neg. Inst. § 145; Greenhow v. Boyle, 7 Blackf. 57; 1 Pars. Bills & N. 33; 1 Rand. Com. Paper, § 183; Close v. Fields, 2 Tex. 232; Schooler v. Tilden, 71 Mo. 580; McIntosh v. Lytle, 26 Minn. 336; Story on Bills and Notes, § 54; Adams v. King, 16 Ill. 189; Smith v. Johnson, Breese, 18; Tevis v. Young, 1 Metc. (Ky.) 197; Byles on Bills, 85. And the same authorities are equally as explicit that such bona fide holder must make himself a party to such note by actually writing his name in the blank left for that purpose before a recovery can be had on such instrument. A few cases seem to hold that in such case the court ought to treat the instrument as though the blank were actually filled,—in other wrords, to treat the paper, in an action upon it, as though the name of the payee were actually inserted, w'hen in fact it is not; and that is what we are asked to do in this case. So far as I have been able to examine the subject, the very decided weight of authority is the other way, and I think has the better reason as well. A different rule would open wide the door for all kinds of uncertainty in the use of commercial paper,—an experiment which it is not desirable to introduce. It follows that the court erred m receiving said note in evidence over the defendant’s objections, in refusing the defendant’s motion for a non-suit, and in its findings of law that the plaintiff was entitled to judgment against the defendant.

The defendant’s answer contained a separate defense, to which our attention was invited upon the argument; but the conclusions already indicated render it unnecessary to express any opinion on that phase of the case.

Let the judgment be reversed, and the cause remanded to the court below, with directions to sustain defendant’s motion for a non-suit.