Waters v. Millar — 1 U.S. 369

Majority

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* Waters v. Millar.

Syllabus

Promissory note.

The mere sale and delivery of a promissory note, payable to order, without any indorsement or assignment, does not entitle the holder to sue in his own name.

On a motion in arrest of judgment, after a verdict for the plaintiff in this cause, it appeared, that the defendant had given his note of hand to one Jesserow, which was expressed in these words : “I promise to pay, or cause

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to be paid, unto George Jesserow, or order, the full sum of 20?., against or before the 27th day of November 1785.” This note was afterward-* sold and delivered, for a valuable consideration, by Jesserow to the plaintiff, but without any indorsement or written assignment; and the defendant having refused to pay it, this action was instituted, in which the declaration, after stating the note, &c., proceeded as follows : — “ And whereas, the said George, afterwards, to wit, on the 4th day of November, in the said year, in the city and county aforesaid, the said 20?. being wholly unpaid, for a valuable consideration to him by the said Nicholas (Waters) then and there paid, bargained and sold the'said promissory note to the said Nicholas, and possession thereof to him, then and .there, delivered ; and in consideration whereof, the said Jacob (Millar) afterwards, to wit, the same day and year last aforesaid, at the city and county aforesaid, at the special instance and request of the said Nicholas, assumed upon himself, and then and there promised the said Nicholas, that he would pay him the said 20?., according to the tenor and effect of the said note. Nevertheless, the said Jacob, the said sum of money, according to the tenor and effect of the said note, hath not paid unto the said Nicholas, &c.”

The question was, whether the plaintiff could maintain the present suit in his own name, upon the mere sale and delivery of the note, without any indorsement or assignment from Jesserow to him?

Sergeant, for the defendant,

having premised, that, if there was a consideration, it was immaterial to lay a promise to pay the note, and on the other hand, that, if there was no consideration, the promise was nugatory and void, contended, that a promissory note, being a chose in action, was not assignable by writing, at common law, much less by delivery alone (Cun. L. B. Ex. 105; 3 Bac. Abr. 605; Salk. 129; Ld. Raym. 757, 774); and that this could not be likened to a note payable to bearer, where possession gives the action (Cun. L. B. Ex. 129); but it is the case of a note payable to one, or his order, which order must be in wilting, to bring it within the statute. As, therefore, no indorsement or assignment is laid, the action cannot be maintained, in its present form. It is true, that the assignee of a bond may sue in the name of the obligee ; and the plaintiff might sue in the name of Jesserow ; but in that case, the defendant could prove a set-off, and show the balance to be in his favor. Of this advantage, he would now, perhaps, be deprived; nor would this action be final, if a bond fide indorsee of Jesserow should hereafter appear.

JRawle, in opposing the motion,

observed, that the verdict had cured all exceptions to the expressions of the declaration, and that *the plaintiff p„h0 had an equitable right to recover, having bought the note for a valuable consideration ; which, of itself, was sufficient to induce the court to consider him as agent, or attorney, to do what Jesserow might have done ; and an attorney, <fcc., who has a naked authority to receive, may sue in his own name, on a promise to pay to him. (Lev. 188; 1 Vent. 318, 332; 2 W. Black. Term Rep.) He then insisted, that the sale and delivery were a good assignment, without writing; which is not necessary to a contract, otherwise than as evidence of it (3 Burr. 1670); and he contended, that there was a sufficient consideration for the assumpsit laid in the declaration ; that being, he

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said, the material ground of the action, and not, as the adverse counsel suggested, the mere possession of the note ; that the plaintiff’s receipt for the money would be a sufficient discharge from any claim on the part of Jesserow; and that, even if the promise were not strictly laid in the declaration, the practice of overlooking similar inaccuracies, in order to promote the justice of the case, would supply that defect. 3 Bl. Com. 394; Salk. 29; 1 Wils. 255; 3 Id. 40; Salk. 364; 1 Sid. 218; 1 Vent. 40. There is, however, at least, so much consideration for the assumpsit as the possession of the note ; and the question of damnification could not come before the court on the present motion, which is in arrest of judgment, and not for a new trial. See Cro. Eliz. 67; Hob. 4; 1 Sid. 31; Styl. 296; 1 Com. Dig. 138.^[1]

This is a motion in arrest of judgment, on the ground that no consideration is laid in the declaration to found the assump-sit upon ; and as it tends to destroy the plaintiff’s action, after a verdict given in his favor upon the merits, the court would afford every aid in its power, consistently with law, to carry the verdict into effect; but they must not depart from the established principles of law, which are wisely calculated for general cases, although in particular ones they may sometimes appear to be hard.

The declaration states, that “ the defendant Jacob Millar gave his promissory note to one George Jesserow for 20?., payable to him or his order ; that by virtue of the statute, the said Jacob became thereupon liable to pay to the said George, or his order, the said sum of 20?. That the said George, afterwards, for a valuable consideration, bargained and sold the said note to the plaintiff, and'delivered him possession of it ; and that in consideration thereof, the defendant assumed and promised to pay the 20?. to the plaintiff, according to the tenor and effect of the said note.”

The question is, whether the sale and delivery of the note to the plaintiff is, of itself, without any indorsement or assignment, a legal ground of the as-sumpsit? for no other consideration is laid.

The note is a negotiable note, payable to Jesserow, or his order; the remedy, therefore, as upon the instrument itself, is confined to Jesserow, or his order ; and it would indeed be confined to Jesserow himself, as a chose in action, if the act of parliament, or act of assembly, did not enable an assignee *371] to Sue in his own name. *There must then be some collateral matter, some injury to the plaintiff, or benefit to the defendant, in the consideration itself, laid as a ground for the assumption.^[1] If the defendant had promised to the plaintiff, having possession of the note, and a power to sue for the money (though not in his own name), that if he would forbear to sue him, he would pay it; or, if the promise had been in consideration of his delivering the note up to be cancelled ; these promises, though made to a person not having an assignment of the note, would perhaps have been sufficient to ground an assumpsit upon. But this is a bare promise to pay to the plaintiff, a stranger, in consideration of a sale and delivery of the note by the payee to him, a consideration moving neither to, nor' from, the defendant, and which c ould not redound either to his benefit or injury. Besides, the promise laid, is to pay to the plaintiff, according to the tenor and

(b) (b) 5) Hamaker v. Eberly, 2 Binn. 509 .

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effect of the note, and the tenor and effect of the note was to pay to Jes serow, or his order, and not to any person to whom he should sell and deliver it. If the note had been payable to Jesserow, or bearer, a bond fide purchaser of it might have maintained the action ; because such notes pass by delivery ; but a note payable to order, must be assigned, to enable the holder to bring the action in his. own name.

Bonds, in England, are, every day, assigned, attended with irrevocable powers to sue for the assignee’s use. Such an assignment one would think would be full evidence of a sale and delivery, yet no actions are ever brought on that ground, but always in the name of the obligees.

We would intend everything we could to support the verdict; but we cannot intend a consideration quite different from that which is laid, which we must do, in the present case, if we were to give our opinion in favor of the plaintiff.

The judgment, therefore, must be arrested.