Walker v. Popper

2 Utah 96 | Utah | 1880

BoRemaN, J.,

delivered the opinion of the court:

This is an action on a negotiable promissory note against the maker and an alleged indorser. The defendants below (appellants here) demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer having been overruled, the defendants answered, and thereupon, pending the impaneling of the jury, the plaintiffs (respondents here) moved for judgment on the pleadings. The court sustained the motion, and gave judgment for the plaintiffs, from which aGtion of the court below the appellants bring the cause to this court.

The overruling the demurrer to the complaint is assigned as error.

It is urged that as the note is made payable to “ A. Godbe, cashier ” of said bank, and there is no allegation that Godbe indorsed or delivered said note to the respondents, that he, and not the bank was the payee, and that respondents had no interest therein. The complaint fully describes in what capacity Godbe’s name appeared in said note: that he had no interest therein, but simply represented the bank. Under the allegations proof could be admitted to show that the bank and not himself individually was the owner and holder of the note prior to indorsement, and that the bank indorsed the note to respondents. Barnes v. Ontario Bank, 19 N. Y. 152; Melledge v. Boston Iron Co., 5 Cush. 158; Shelton v. Darling, 2 Conn. 435; Farmers and Mechanics Bank v. Troy City Bank, 1 Doug. (Mich.) 457; 1 Parsons on Bills and Notes, p. 167 et seg.; Jaccard v. Anderson, 36 Mo. 91.

As another reason why the demurrer should have been sustained it is urged that no demand was made at the bank for payment of the note. The complaint alleges a waiver of protest and notice, but says nothing as to demand. There is a conflict of authority as to whether the waiving of protest constitutes a waiver of demand. We are inclined to think the better view to be that a waiver of protest is a waiver of demand. Union Bank v. Hyde, 6 Wheat. 572; Coddington v. Davis, 1 Comst. 186; 1 Parsons on Bills and Notes, pp. 576-579; Gordon v. Montgomery, 19 Ind. 110.

It is further objected that the complaint fails to allege that the note has not been paid. The language of that part of the complaint is “ that by reason of the premises said defendants are justly indebted to them in the sum of three thousand five hundred dollars ($3,500) which said defendants have not paid, nor any part thereof.” This is a sufficient allegation of the non-payment of the note.

The demurrer, however, was the joint action of both defendants, and as there was beyond question a good cause of action stated against defendant Popper the demurrer could not stand, and on that ground, if on no other, it was properly overruled.

The remaining alleged errors have reference to the judgment upon the pleadings.

The answers of both defendants substantially assert that the note was given for the'accommodation of Warren Hussey, and was only to be used as collateral security to ensure the delivery^ of certain ores within sixty days, and that respondents knew; all these facts when they took the note; and it is further stated that the delivery of the ores for which it was to stand as security was completed within the sixty days, and that therefore the note belonged to defendant Popper. If the object of the note was known to the respondents when they received it, and its object had been accomplished, they then hold the note just as if payable to themselves and given without consideration, and appellant Popper would have the same defense against them as against the bank or Warren Hussey. The object for which the note was given had been accomplished and the note had completed its work. It was fundios officio, and should have been delivered up to the maker.

The answers, therefore, set up a good defense, to say nothing of the issues raised by the denials. The action of the court below, therefore, in rendering judgment for respondents on the pleadings was erroneous, and the judgment is reversed, with costs, and the cause remanded to the court below to be proceeded with in accordance with this opinion.

SChaeffeR, C. J., and EiuersoN, J., concur.