McCoon and Sherman v. Biggs — 2 Hill & Den. 121

Majority

p. 121

McCoon and Sherman vs. Biggs, impleaded with Smith.

Headnote

Where the plaintiffs claimed to recover on a note as endorsees from A., and offered to show by paroi that A.’s signature to a mere receipt for money, written on the back while he yet owned it, was intended at the time of the alleged transfer to operate as an endorsement, for the purpose of negotiation; held, inadmissible.

And querc, whether oral evidence could be received even to show such to have been the intent at the time of signing the receipt.

Semble, that in an action on a note by an endorsee, the maker’s admission of liability to him is available as a substitute for direct proof of the endorser’s hand-writing.

The promise of one of two joint makers of a note, to pay it to a mere equitable assignee, will not entitle the latter to sue both in his own name.

p. 122

Whether the assignee of a note not negotiable, to whom the maker has promised to pay it, can recover as for money had and received,, quere.

Assumpsit, tried at the New-York circuit, March 13th, 1841, before Gridley, G. Judge. The action was by the plaintiffs, as second endorsees of a promissory note of $1000, made by the defendants, and payable to the order of James Smith. The latter had endorsed it specially payable to Seaman & Smith. The only endorsement by Seaman & Smith was thus: “ Rec’d. New-York, Oct. 26th, 1839, three hun dred and sixty three dollars fifty-eight cents. (Signed) Seaman & Smith.”

Among other proof given by the plaintiff on the trial, they showed that a short time after this suit was commenced, the defendant, Biggs, called on the plaintiffs’ attorney and, after inquiring as to the amount of the note, the costs, &c., promised to call again in a few days and pay the amount.

The plaintiffs offered to prove that Seaman & Smith actually transferred the note to them, (the plaintiffs,) after the endorsement last mentioned, and that at the time of the transfer they (Seaman & Smith) intended the endorsement should operate by way of negotiating the note to the plaintiffs. This was overruled, the circuit judge however saying, he would allow proof that such was the intent of the defendants at the time of making the endorsement.

The plaintiffs next offered to show, that before this suit was commenced, and after the note had been transferred to the plaintiffs, the defendant Biggs admitted his liability, and promised to pay it. This was objected to as inadmissible in any view; and especially, as the declaration contained no special count on such a promise. The objection was sustained. No further evidence being offered, the plaintiffs were nonsuited, and now moved for a new trial on a bill of exceptions.

G. Bowman, for plaintiffs.

C. Judson, for defendants.

p. 123

By the Court,

Clearly, it would be a perversion of the endorsement by Seaman & Smith, to say, without extrinsic proof, that they intended it for the purpose of negotiating the note. The judge offered the plaintiffs the utmost latitude they were entitled to, when he said they might show by paroi evidence, an intent at the time, that the signature should operate as a transfer. Even this would have been directly to contradict the legal effect of the instrument, which of itself was a mere receipt for money paid.

Had there been an endorsement on the note purporting to work a transfer, perhaps the admission of Biggs, as proved or offered to be proved, might have been available against him as a substitute for proof of Seaman & Smith’s hand-writing;^[1] but such an admission would not make the endorsement in question operative for any purpose beyond what it expressed.

The cases cited as sustaining the position in note (2), Chit, on Bills, 9th Am. ed. p. 593, viz. that the assignee of a note, not negotiable, whom the maker has promised to pay, may recover as for money had and received, do not go that length, though the dictum in Surtees v. Hubbard, (4 Esp. R. 203), comes very near it. But the case at bar, admitting that Biggs promised, comes short of that. The action is against Biggs and Smith. The new promise of Biggs alone, however it might affect himself, cannot be insisted on as raising a new joint liability in him and his co-maker.

On the whole, we think the nonsuit was right; and a new trial is denied.

New trial denied.

(a) (a) Bosanquet v. Anderson, 6 Esp. Rep. 43. Tebbetts v. Dowd, 23 Wend. 390 .