Meghan v. Mills — 9 Johns. 64

Majority

p. 64

Meghan against Mills.

Albany,

Jan, 1812

Headnote

A. gave B. in J^ewYork, a note or a due HI?, in the following words; “ Due to B. 170 dollars, value received.” On which z)j. endorsed 3.is name and delivered it to C. who, after-wards, demanded payment of the due bill from

A. at Albany, who said he was going to A'cw-York, the next week, and would settle it there ; and A. after-wards, paid the amount to B. in JVbw York, and' took his receipt in full, the due ■ bill, being still in the hands of C. C. aflerwardsbrought a suit, in the name of B. against A. on thenotentwas held thatthere was not sufficient notice of an assignment of the note; and that C. when he demanded payment, ought to have shown the note, with the endorsement to A. or explicitly stated that it had. been assigned by B. and that C. was not entitled to recover»

THIS was an action of assumpsit, brought on a note or due bill, . in the following words: Due Henry Meghan, one hundred and seventy dollars, value received. • Albany, October 29, 1810. John Mills.” '

At the trial, the defendant gave in evidence a receipt, as fob-lows : c< Received, New-Yorlc, November’ 28,1810, of John Mills, one hundred and seventy dollars, being the amount of a due bill, in the hands of Wrn. Leonard', which I promise to destroy. Henry Meghan■

. The plaintiff, in order to show an assignment of the due bill to Leonard, and notice thereof to the defendant, proved the endorsement of the plaintiff’s name on the bill; and that in the spring of 1811, Leonard called on the defendant and demanded payment of the bill, and the defendant produced the above receipt; that in the conversation which then took place, the defendant admitted that Leonard had demanded payment of the bill, the preceding autumn, and the defendant did not pay it, as he had not the money, at that, time; but told Leonard that he, the defendant, was going to New-Yorlc, the next week* in the steam boat, and would settle it there. It appeared that the plaintiff lived in New-Yorlc,- and that Leonard was a steward on board of one, of the steam boats.

,■ The judge left it to the jury, whether there was sufficient evidence of a notice of an assignment to Leonard, and expressed his,, opinion, that it was enough to charge the defendant with notice. The jury found a verdict for the plaintiff.

A motion was made to set aside the verdict, and for a new trial*

Rodman, for the defendant.

Sedgwick, contra.

Here was not evidence sufficient to charge the defendant with notice of the assignment of the note to Leonard, at the time that he paid the amount of it to the plaintiff. It was not a negotiable note, and there was no other evidence of the assign

p. 65

ment of it, than the endorsement of the plaintiff’s name in blank. This would be sufficient for negotiable paper, but as for specialties and other paper, not negotiable, it is not conclusive of itself, though it may be presumptive evidence, that the property in the paper has been passed. But it does not appear that Leonard had even shown this endorsement to the defendant, before the payment, or given him any notice that he was proprietor of the note. All that he had done, was to call upon the defendant for payment, and this might as well have been in the character of agent or servant to the plaintiff, as of owner. The presumption is, that the defendant considered Leonard in that light, for he said he was going to New-York, the next week, in the same steam boat, and would settle it - there. The settling of it there, would seem to refer to the plaintiff, as the person with whom he would settle, for the plaintiff lived there, and it does not appear where Leonard resided, but he was a steward on board of one of the steam boats.

The only additional fact from which to infer notice, was, that when the money was paid to the plaintiff in New-York, the note was still in the hands of Leonard. This payment was in November, and probably in the “ next week” above referred to, and under the above circumstances, it was not enough to ground the inference. There ought to be something equivalent to a direct and positive notice of the assignment of the instrument, before the defendant is to be charged with a fraudulent payment to the plaintiff^ for in no other point of view could the payment be questioned. If the plaintiff meant to give any thing more than a mere authority to Leonard, to receive the money, and had actually transferred to him his interest in the note, Leonard was guilty of great negligence, in not producing the note, and stating explicitly his interest, as owner, when he called upon the defendant for payment. The circumstances of the case are too loose and equivocal to justify the court in helping the laches of Leonard, by fixing the charge of fraud upon the defendant.

Motion for a new trial granted, with costs to abide the event of the suit.