Commissioners of Iredell County v. Wasson

Ashe, J. The only question presented for the consideration of this court by the appeal is, was there error in the instructions asked for or those given by His Honor to the jury ? It was contended by the plaintiffs’ counsel that Carlton was only the custodian of the funds of the county and had no right to make any contract binding on the commissioners, but to this it is objected that admitting the position to be correct, it was proved by the chairman of the board of commissioners that the certificate was the property of the county, and the fact that the commissioners of the county have brought this action in their own name for the recovery of the amount of the certificate, alleging in their complaint that “they now hold and own the same,” concludes them from repudiating the act of Carlton, as the agent of the county in receiving the certificate. “The assent and election of the holder to treat the endorsement as a transfer is proved by his sueing upon it in his own name.” Danl. Neg. Inst., 514. It is the strongest ratification of the act that can well be imagined. They are concluded by the maxim “omnis ratihabitio retrotrahitur et mandato priori asquiparatur.” The principle involved in the instructions asked for by the plaintiff and refused by His Honor is correct, when applied to a case where the action is brought by a remote en-dorsee against a prior endorser. Hill v. Shields, 81 N. C., 250. But it has no application to the facts of our case. Here, Carlton was the financial agent of the board of commission *312 ers and he received the certificate for the ns© of the county in his official capacity in payment of an indebtedness to the county. It was the property of the county as soon as received by Carlton, certainly so after the ratification. And when delivered by him to his successor, as a part of the county funds in his hands, the ownership of the certificate was not changed; it was still the property of the county. The board of commissioners were not remote endorsees in any sense, whose rights were unaffected by any special agreement between the endorser and payee, but in fact they were the first endorsees with whom the special agreement was made. In the instructions given to the jury we do not discover any error. There was no error in telling them that if Carlton received the certificate as treasurer in payment of a debt due by Wasson to the county, his act was the act of the county, in view of the fact that the commissioners had ratified the act by sueing upon the certificate claiming it as.their own. Nor do we think there was any error in the latter proposition laid down by the judge, “that if Wasson had satisfied them by a preponderance of testimony, that at the time he endorsed the certificate the contract between him and Carlton was, that he was not to be liable and that his endorsement was to pass the title only, their they should find the issue in favor- of the defendant, hut if they were not so satisfied, they should find the issue in favor of the plaintiff. While there is much diversity in the English as well as American decisions upon the subject of admitting evidence to rebut the legal presumption, that every endorser in blank of a negotiable instrument intends to incur the liability which the law attaches to the act of endorsement, in this state it is settled that in an action by the first en-dorsee against the payee, a special agreement between them restricting the endorser’s (payee’s) liability when the en *313 dorsement is in blank, may be interposed as a defence to the action. Mendenhall v. Davis, 72 N. C., 150; Davis v. Morgan, 64 N. C., 570. We do not feel ourselves called upon to express an opinion upon the negotiability of the certificate, as it was admitted on the trial to be a negotiable instrument. There is no error. Let this be certified to the superior court of Iredell county. No error. Affirmed.