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Black v. Caffe

7 N.Y.3d 281 Court N.Y. English

Delivered by ^Johnson, J.

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Black v. Caffe.

Headnote

Bill of exchange as evidence under the money counts.
In an action by the indorsee of a bill of exchange against the acceptor, the bill may be given in evidence, under the money counts, where a copy has been served with the declaration.
Writ of Error to the Supreme Court, sitting in the first district, where a judgment of the Superior Court of the city of New York had been affirmed.
This was an action of assumpsit against Michel Caffe, as acceptor of three bills of exchange, drawn upon him by F. Yatin, Jr. & Co., of St. Quentin, in France. The plaintiff was the indorsee of the bills.
*The plaintiff commenced suit, by the filing -* and service of a declaration containing the common money counts, on which was indorsed a copy of the bills in question, with a notice “ that the following were copies of the bills of exchange upon which this action is brought, and which will be given in evidence under the money counts contained in the within declation, and are the only causes of action on which the plaintiff relies in this suit” The bills were in the French language. The defendant pleaded the general issue.
Upon the trial, the bills were given in evidence, the signatures of the various parties being admitted; whereupon the defendant’s counsel moved for a nonsuit, upon the grounds:
1. That the statute authorizing a plaintiff to declare upon the money counts, and give a bill of exchange in evidence, where a copy of it had been served on the
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defendant with the declaration, did not apply in this case.
2. That if such statute did apply, yet, as the copies of the bills served with the declaration were in the French language, it was not a compliance with the statute: that the copies served, not being in the English language, were to be regarded as if no copies had been served with the declaration:
3. That the bills in question *were not evi- .- ^ ^gg dence of money lent or advanced by the plaintiff, or paid, laid out or expended by the plaintiff, to the use of defendant, nor of money had and received by the defendant to the plaintiff’s use, nor an account stated.
The court denied the motion for a nonsuit, and the defendant’s counsel excepted. A verdict was, thereupon, rendered in favor of the plaintiff; which was sustained by the superior court, at general term; and the judgment having been affirmed by the supreme court, on error, with double costs, the defendant sued out this writ.
Miller, for the plaintiff in error.
Dillon, for the defendant in error.

The was indorsee of - three bills of exchange, accepted by the defendant, and declared against the defendant upon the common money counts, annexing to the declaration copies of the three bills, with a notice that the same would be given in evidence, and were the only causes of action relied on by the plaintiff. Upon the trial, the question was raised, whether the plaintiff could recover in this form, and the courts below having held the defendant liable, the question is now brought here upon writ of error.

I am satisfied that, upon a fair construction of the

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several statutes relative to suits on bills of exchange and promissory notes, this action can be maintained, irrespective of the question as to the rule at common law. The statutes were intended to introduce a system of more easy pleading, in this very common class of actions, and as the mischief extended to every sort of action on bills of exchange and promissory notes, where special counts were necessary, and as there is no reason for allowing the new mode of pleading in certain cases, and disallowing it in others, and especially, not in the case of suits against a single party to a bill, in which case, if in any, no inconvenience can arise from allowing the short method of pleading, we ought not, I think, to be astute, to exclude the case from the purview of the statute, unless we are compelled to do so by its clear language.

The act of 1832 (c. 276), in its first section, provided, “ It shall be lawful for the holder of any bill of exchange or promissory note, hereafter to be made, to include all the parties in one action.” The bills of exchange and promissory notes referred to in the act are those thereafter to be made. The third section read as follows: “The * 9RK i plaintifi: in any such action, and in all *other ■i actions on bills of exchange and promissory notes, may declare upon the money counts alone; and any such bill or note may be given in evidence under the money counts, in all cases where a copy of the bill or note shall have been served with the declaration.” This section was modified by ch. 93 of the laws of 1837 as follows: “The plaintiff in any such action may declare on the money counts alone, and every such bill or note may be given in evidence under the money counts, in all cases where a copy shall have been served with the declaration;” which service might be proved by suggestion on the circuit roll.

The section, as it stands thus amended, contains, in the first place, a rule of pleading for actions against all

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parties to a note or bill. In the next place, it contains a rule of evidence, which relates not to that new species of action alone, but which is declared concerning every such bill or note; and looking back at the first section of the act of 1832, we see, that the kind of bills and notes referred to are those made after the making of that act. The section then in reference to all such bills or notes provides, that they may be given in evidence under the common money counts; this is all that is necessary to cover the case before us. Where parties were. to be joined, who could not be joined at common law, a new rule of declaring was needed, and is provided by the first part of the section. In this case, no new mode of declaring was necessary, to accomplish the purpose of the statute, which is completely attained by the provision that the" bill or note may be given in evidence under the common counts, under the limitations which the section specifies.

In the case of Miller v. McCagg ( 4 Hill 35 ), some expressions of Bronson, J., who delivered the opinion of the court, seem to conflict with the view before stated, but the point we are considering is not alluded to, and the remarks in question are confined to the statutory action provided by the acts of 1832 and 1837, and not to the rule of evidence contained in the third section. Moreover, the question in that case arose upon a motion for an order that one defendant should be allowed to examine his co-defendant on the trial, and it was entirely clear, that the *motion must be denied, whatever ^gg view might be taken of the question, whether the ^ action came within the purview of the statute. Under these circumstances, the cáse cannot be considered to decide anything on that point.

Butler v. Rawson ( 1 Denio 105 ) was an action on a joint and several promissory note signed by two persons, one adding “ surety” to his signature. The declaration was the common money counts, and a copy of the

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note had been served. The question mainly considered, is, whether, at common law, a recovery could be had against the surety, under the common counts. The other question is dismissed with the observation, that the statutes (1832, 1837) only apply to cases where different parties, as makers 'and indorsers, drawers and acceptors, are joined in one action. This remark was obviously based upon the examination which had been given to the point in Miller v. McCagg, where the question did not arise, and was not carefully considered. Balcom v. Woodruff ( 7 Barb. 13 ) arose upon the same state of facts. The decision is placed upon the authority of Butler v. Rawson, and follows that case; the court re-examine the question as it stood at common law, and arrive at the conclusion, that the decision was correct on that ground, but do not advert to the question upon the facts.

The view we take of the true construction of the amended third section of the act of 1832 is likewise strengthened by ch. 24 of the laws of 1845, which provides, that whenever a suit shall be brought upon a bill or note, according to the act of 1832, as amended, and in all other actions upon bills of exchange and promissory notes, an entry of a copy of the bill or note on the copy of pleadings furnished to the court upon the trial, with a suggestion of the service thereof on the defendants, shall be primé facie evidence of such service. Unless the act is to be construed as we have stated, there is no possible purpose for which it could be needful, in other actions on bills or notes, to prove that a copy of the note had been served with the declaration. This act, therefore, affords a strong implication in favor of that construction. We think, that the judgment below should be affirmed.

When this case was before us * 287 J £n yie court below, we considered the law very

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well settled by a long current of authorities and by uniform practice, that assumpsit for money had and received would lie, by the holder of a bill of exchange against the acceptor; that there was direct privity of contract between them; and that the bill and its acceptance was a transfer to the holder of so much money of the drawer in the acceptor’s hands. If authorities are necessary, they will be found in our court of errors, in Henschel v. Mahler, 3 Denio 430 ; in the United States supreme court, in Raborg v. Peyton, 2 Wheat. 386 ; in the English courts, in Tatlock v. Harris, 3 T. R. 174, &c. Indeed, we considered the question so well settled, that we could not look upon the defence as anything but vexatious, and interposed merely for delay, and we, therefore, gave double costs. The judgment ought to be affirmed.

The bill might have been given in evidence under the money counts, without the aid of the statutes on this subject. (Henschel v. Mahler, 3 Denio 428 , 430; Hays v. Phelps, 1 Sandf. 67 , and the authorities cited in these cases.[1]

Judgment affirmed.

1 Purdy v. Vermilya, 8 N. Y. 346 . And see Spear v. Myers, 6 Barb. 445 .

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