9 Mo. App. 387 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This suit is upon a promissory note for $5,000, executed August 3, 1872, by the partnership firm of Koch, Chew & Co., in favor of Gustavus A. Koch, one of the partners, payable on demand, and indorsed and delivered in September, 1878, by the payee to the plaintiff. The defence relied on is that the note, was transferred after maturity, and is, therefore, subject to any equities that existed between the original parties; that on account of the partnership relation the payee could not have recovered upon the note, and his transferee occupies no better position. A referee found the issues for the plaintiff, and judgment was rendered accordingly.
It may be conceded that the note was dishonored at the time of its transfer, but the question remains whether the equitable defences admitted by that circumstance include the one here attempted. It is not questioned that the payee himself could not have maintained a suit at law, on account of the insuperable objection that he would have been both' plaintiff and defendant in the same action. In Hill v. McPherson, 15 Mo. 130, our Supreme Court extended this disability to the transferee. Said Judge Ryland: “ We-cannot see how the assignor, who could not sue himself, can give, by his assignment, power to the assignee to sue.” But the note in that case was non-negotiable, and the decision was expressly founded on a statutory provision to the effect that “ the nature of the defence of the obligor or maker shall not be changed by the assignment, but he may make the same defence against the bond or note in the hand,s of the assignee that he might have made against the assignor.” Rev. Stats. 1845, p. 194, sect. 4. On the other hand, the authorities uniformly hold, on general principles, that the technical disability under consideration does not extend to
When a note remains, after maturity, in the hands of the payee, the only supposition consistent with the presumption of good faith in the maker, and of his ability to meet his engagements, is that some equity exists between himself and t£e payee which should reduce or defeat the claim appearing on the face of the instrument. Hence, an indorsee who takes under these circumstances is held chargeable with notice of such equities, if any there be. But the equities thus supposed must be real equities affecting the merits of the payee’s 'demand. A mere personal disability in the payee to sue cannot negative the maker’s duty to pay; and, therefore, such a disability is not to be reckoned among the possible equities of which the indorsee assumes the risk. About the only equities thus assumed will be such as pertain to the consideration of the note, or to a claim of set-off held by the maker at the date of the transfer. Sherwood v. Barton, Davis v. Briggs, Smith v. Lusher, supra; Campbell v. Rusch, 9 Iowa, 337 ; Elwell v. Dodge, 33 Barb. 336. In the present case, no attempt is made to deny the consideration of money advanced to the full amount of the note. As to set-off or counter-claim, there can be no pre
The judgment must be affirmed.
