Fairthorne v. Garden — 6 Del. 197

Majority

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Frederick Fairthorne v. Francis R. Garden.

Headnote

The holder of a negotiable note may maintain an action against the maker of it, without showing how he obtained it, unless he is notified previous to the trial that the payment of it will be resisted for good and sufficient reasons in law.

This was an action on a promissory note, by the plaintiff, an indorsee, against the defendant, who was the maker of it. The note was drawn payable to the order of Samuel Baird, who indorsed it to George S. Selden, for whom it was discounted by the firm of Kramer &.Kham, of Pittsburgh, who held it until its maturity. After it had been protested for nonpayment Selden paid the amount of the

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note to Kramer & Kham, and by his request and direction they transmitted it to Wilmington for collection, for his use and benefit.

Gordon, for the defendant,

made a motion to nonsuit the plaintiff. There was no proof that the/note was ever indorsed, or transferred to the plaintiff, or that he had any legal interest in it, or was even the rightful owner and holder of it. From the evidence it did not appear that he had anything to do with the transaction, in one way or another, or that he had any right or claim whatever to the money, or any part of it, due upon the note.-

D. M. Bates, for the plaintiff:

The holder of a negotiable note, payable to order, or to bearer, had a right to the note, and might maintain an action upon it against the maker, without showing how he came by it; for it was no question for the maker to raise how the holder came by it, unless he had notified the holder previous to his taking it, that he had some equity or good ground of defence against it. To hold otherwise would entirely .destroy its negotiability. Where he had no equity against the note, but was bound to pay it to some one, he was bound to pay it to any one who has it, or holds it, no matter how he came by it. If a note was indorsed by the payee in blank, or by a sub-, sequent indorser in blank, and was sent to him for collection, he might bring a suit upon }t in his own name, and might fill up the indorsement to himself by adding his own name. Story on Promis. Notes, 137. A note payable to order, and indorsed in blank by the payee, was then the same as a note payable to bearer; and therefore it was well settled that if there were several indorsements on a note, in an action by the party to whom it was last indorsed -against the maker, it was only necessary to prove on the trial the first indorsement. The maker was never allowed to impugn the possession of the holder, or to deny his liability upon it at the trial, without giving previous notice to the other party of his intention, and the ground

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on which he intended to resist it. Chit. on Bills, 512, 525. And he was obliged to show that he not only had an equity against the payment of it, but that the holder had no equity to have it paid. Byles on Bills of Exch. 37; Law Libr. 37. Besides, he had a right then, upon the trial, to insert the name of the plaintiff as the holder, after the last indorsement, which was that of Selden’s, converting it from an indorsement in blank into a special indorsement to the plaintiff, if it were necessary; but it was not, ás he was entitled to recover without it.

Gordon:

The evidence in the case negatived the idea or presumption, which arises in the absence of all proof to the contrary, that the mere holder of the note, from the simple fact of having it in possession, came by it rightfully, and was therefore entitled prima fade to sue the maker and recover upon it, without being required to show how he came by it. But the evidence in this case negatived that general presumption, which only arose when there was no proof in the case, or presumption of fact' to rebut the legal inference. But the evidence of Kramer was, that after the maturity and protest of the note, and whilst the firm of Kramer & Eham were still the owners and holders of it, by indorsement from Selden, he paid the amount of it with interest to the firm, and that by his directiqn they then sent it to "Wilmington—he did not state’ to whom, but certainly not to F.airthorne, the plaintiff—to be collected for the-benefit of Selden, who was then the bona fide owner of the note'; and that was all the proof disclosed upon the subject; and the question was, how the plaintiff came by it, hoW it got into his possession, and what legal interest, right, or claim he can have in the note, or to the money due upon it, to entitle him to sue the- maker, or any other person for it ?

refused the motion for a nonsuit, and charged the jury that when a party held a promissory note, indorsed in blank by the payee alone, or by subsequent

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holders afterwards, the law presumed that, as the holder, he was properly and rightfully in possession of it, and 'he was entitled to sue for and recover the amount of it from the party who made it, without showing how he came by it, or in what manner he obtained it, unless he was notified hy the maker previous to the trial that the payment of it would be resisted hy him for good and sufficient reasons in law, which had not been done, however, in the present case. That this presumption was but the necessary and reasonable result of the negotiable character of a promisspry note, and the general credit and currency which was conceded to such notes by law, by common consent, and by the customs and usages of trade and commerce everywhere ; and therefore, if they were satisfied upon the formal proof offered as to the signature of the maker, and the indorsement by the payee, their verdict should be for the plaintiff.