Wamsley v. Darragh

To an action by the indorsee of a promissory note, payable to the order of one Robert L. Darragh, against the maker, the defendant, after denying the fact of indorsement, as well as the plaintiff’s title to and ownership thereof, answered that the note was indorsed in the name of the payee and transferred to the plaintiff by one Laura A. .Darragh, who assumed, in that behalf, to act under a power of attorney which was executed by the payee while insane, and procured of him by means of undue influence and duress. The cause was tried before the justice, without a jury, at trial term of the court below, and resulted in a. judgment for the plaintiff. Such judgment was affirmed at gen

Upon the trial the note was produced and conceded to be genuine. Furthermore, the, fact of the indorsement in the payee’s •name, by Laura A. Darragh, was admitted, and the power of attorney under which the latter assumed to act received in evidence. This power of attorney was directed to Laura A. Darragh and Edgar Whitlock, but in terms authorized the persons last named jointly and singly “ to indorse,' either for collection or otherwise, any check, draft, bill of exchange, or promissory note drawn to bearer or to 1 the order of the principal,’ or indorsed payable to ‘the principal or his order,’ and to execute and deliver'all proper and necessary instruments for the assignment or satisfaction- of any and all mortgages held by 1 the principal ’ on either real or personal estate, or of other evidence of indebtdness.” This was ample evidence of authority in Laura A. Darragh, without Whit-lock’s joinder, to indorse and transfer the note in suit, and the note and indorsement each imported a sufficient consideration. Abb. Tr. Ev. pp. 403, 413. The defendant’s attitude conceded his refusal to pay the note, and demanded of payment of a promissory note is not a condition precedent to a right of recovery against the maker. 5 Am. & Eng. Enc. Law, p. 528z46, and cases collected in note 4. The plaintiff’s right to the judgment rendered was, therefore, incontestable, in the absence of proof of a valid defense.

It seems that one non compos mentis is incapable, in law, of appointing an agent, and that such an appointment is void, and not voidable merely. Dexter v. Hall, 15 Wall. 9 ; Bunce v. Gallagher, 5 Blatch. 481; 7 Am. Law Reg. (N. S.) 32 ; Fed. Cas. 2,133; Zouch v. Parsons, 3 Burrows, 1794; Ewell, Lead. Cas. 3 ; Fonda v. Van Horne; 15 Wend. 631 ; Fetrow v. Wiseman, 40 Ind. 148 ; Ewell, Lead. Cas. 22. Assuming, therefore, that the payee’s insanity at the time of the execution and delivery of the power of attorney was available as a defense to this action, we must, notwithstanding, conclude that the judgment appealed from is unimpeached; since the record is destitute of evidence in support of the defense, and presents no vaild exception to the exclusion of evidence. It was not contended, in the defendant’s behalf, that the payee had ever been adjudged to be of unsound mind. Such an adjudication would have been conclusive of the fact with regard to all subsequent acts of the person declared to be incompetent, and prima facie evidence of the fact with regard to his acts done within the period during which he was adjudged to have been incompetent. 2 Black, Judgm. § 802; Hughes v. Jones, 116 N. Y. 67 ; 26 St. Rep. 511 . The defendant, however, contented himself with offering in evidence (1) “a copy of the verified answer to petition for probate of an instrument purporting to be the last will and testament of said Robert L: Darragh, decedent, in proceedings now pending in the surrogate’s court of the county of New York; ” (2) “copies of record in court of common pleas in proceedings for commission in lunacy of person and estate of Robert L. Darragh, pending at the time of his decease; ” and (3)

The judgment should be affirmed, with costs.

All concur.