Henschel v. Mahler — 3 Hill & Den. 132

Majority

p. 132

Henschel vs. J. R. and H. Mahler.

Headnote

The great commercial advantages growing out of the general use of negotiable in.

struments, have induced courts to adopt a most liberal rule in construing them. Repugnant and absurd phraseology in an instrument evidently designed as a bill of exchange, may, in certain cases, be rejected as surplusage.

Accordingly, in an action by the endorsees against the acceptor of an instrument, bearing date “ Leipsic, April 18th, 1839,” and drawn thus: li For fr's 8755,60, payable cfe. on the 31 Dcc'ber 1839. On the 31st Oct. of this year pay gc., to Ike order of ourselves, 8755 francs 60 cts., payable in Paris, the 31st I)cc. of this year,” #c: Held, a valid bill of exchange, notwithstanding the ambiguity as to the time of payment; for the words 4t on the 31s£ Oct. of this year” should be rejected as repugnant, and the bill be deemed payable on the 31st of Dec. 1839.

General reputation is not admissible for the purpose of proving that one prosecuting as endorsee of a bill of exchange, is in fact the general agent of the drawer.

Error to the superior court of the city of New-York. The action in the court below was by John R. and Henry Mahler, the endorsees, against Henschel as acceptor of a hill of exchange in these words :

u Leipsic, April 18, 1839. For Fr’s 8755,60, pay’ble in Paris on the 31 Dec’ber, 1839.

On the 31st October of this year pay for this first of exchange, to the order of ourselves, eight thousand seven hundred and fifty-five francs 60 cts., payable in Paris the 31st December of this year, value in ourselves, and charge the same to account as advised. Dhfour, Brothers & Co.”

To Mr. Alexander Henschel, New-York, or where to be found.”

Endorsed—“ Dufour, Brothers & Co.”

Written across—u Accepted, Leipsic, April 23, 1839.

A. Henschel.’* ■

p. 133

On the trial, after proving the signatures of the drawers, endorsers and acceptor, the plaintiffs rested. The defendant below moved for a nonsuit on the ground that the instrument in evidence was not a bill of exchange, nor a negotiable instrument of any kind. The motion was denied, and the defendant excepted. The defendant offered to prove by common reputation, that the plaintiffs were the general agents of the drawers. The court decided that the evidence was inadmissible, and the defendant again excepted. Under the direction of the court below the jury found a verdict for the plaintiffs, and, after judgment, the defendant sued out a writ of error.

W. W. Van Wagenen, for the plaintiff in error.

D. D. Field, for the defendants in error.

The only ground relied on to maintain the position that the instrument in question is not a bill of exchange, and therefore not negotiable, is, that the time of payment is uncertain. Looking at the whole of the instrument, however, with a view to collect the meaning of the parties as there expressed, there can I think be no doubt that the time of payment intended was the 31st of December, 18.39, and that the words “ on the 31st October of this year,” should be rejected as repugnant and absurd. The cases referred to by-Mr Chitty (Chitty on Bills, 150, 9th Am. ed.) afford sufficient authority for thus interpreting the bill. The great commercial advantages growing out of the general use of negotiable instruments have induced courts to adopt a most liberal mode of construing them.

The objection that general reputation ought to have been received as competent evidence that the plaintiffs were the agents of the drawers, and stood in their place in the suit, is too untenable tp require a remark.

Judgment affirmed.