Sibley v. Robinson

The opinion of the Court was by Whitman C. J. One Charles Robinson was owing the plaintiff several sums of money, and indorsed or delivered to him five several notes of hand, payable to the said Charles or bearer, against the defendant, and took from him a receipt specifying generally, that they were received as collateral security, and that one of them, particularly designated, and not the one in suit in this case, was to go towards a certain note, which the plaintiff held against the said Charles and one Glidden, [73] which, it appears, has been since paid, and saying nothing as to what other demands the residue were to be collateral security for. All the other demands of the plaintiff against said Charles were secured, to a certain extent, by a mortgage of real estate. The Judge, sitting at the trial, having intimated an opinion, that the plaintiff could not recover, a nonsuit was entered, which is to stand, unless the whole Court should be of a different opinion. We must in this, as in all other cases of contract, endeavor to ascertain what was the intention of the parties. There were five notes transferred. One of them is specifically appropriated. None of the others were so. This seems to afford a clear indication that the latter were intended to secure other demands. What other demands had the plaintiff to be secured ? None but those already partially secured by a mortgage of real estate. To the further security of these, then, it must have been intended that they should have been applied. If otherwise, it would surely have been so expressed. One never would have been selected, and a particular direction given to it, if it were not intended that the others should have a different destination. But it does not appear that the defendant can question the right of the plaintiff to recover. The latter came fairly by the notes. They were transferred to him by the payee, and for a valuable consideration, and no defence is pretended upon the merits. What right has the defendant to question the validity of the plaintiff’s claim to their contents ? They are justly due from the defendant to some one. It does not appear that even the payee questions the right of the plaintiff to recover. In such case it has been repeatedly ruled in this State and Massachusetts, that the plaintiff, although but nominally such, may be allowed to recover for the benefit of the party in interest. Sherwood v. Rogers, 14 Pick. 172; Hodges v. Holland, 19 Pick. 43; Bradford & al. v. Bucknam, 3 Fairf. 15; Fisk v. Bradford, 7 Greenl. 28; Bragg v. Greenleaf, 14 Maine R. 395; Marr v. Plummer, 3 Greenl. 73. In this last case the Court go further, and say, such “ fact (viz. that the plaintiff [74] is but nominally such) is of no importance to the maker, except he has a defence, good as between him and the promisee.” This position is abundantly supported by the decisions of the Courts in New. York. Mauran v. Lamb,7 Cow. 174; Lovell v. Evertson, 11 Johns. R. 52; Gage v. Kendall, 15 Wend. 640. In Conroy v. Warren, 3 Johns. Cases, 259, Mr. Justice Kent laid down the law, and it seems to have been fully concurred in by the other members of the Court, that u a note indorsed in blank, and one payable to hearer, are of the same nature ; they both go by delivery ; and possession proves property in both cases. If a question of mala fide possessio” arises, that is a matter of fact to be raised by the defendant. And if a note be indorsed in blank the Court never inquires into the right of the plaintiff whether he sues in his own right or as trustee.” Nonsuit set aside. — New trial granted.