Bank of Cumberland v. Mayberry

[202] The opinion of the Court was drawn up by. Appleton, J. The plaintiffs, as indorsees, claim to recover on a note signed by the defendant, and received by them in the ordinary course of business, without notice of any fact impeaching its validity. The note purports to have been made on a day other than Sunday. The defence interposed is, that the note, notwithstanding its apparent date, was in fact made and delivered by the maker to the payee on Sunday. A note signed and delivered on Sunday, as between the parties, is invalid. It is otherwise, if it be only signed on that day and subsequently delivered. Hilton v. Houghton, 35 Maine, 143; Allen v. Deming, 14 N. H., 139. If the note in suit was an accommodation note, and without consideration, as between the parties, the payee could not recover. The note would derive its validity from its indorsement. It could not be regarded as an instrument binding and effective until indorsed for the purposes for which it was made. As the indorsement of the note was not until Monday, if it is to be regarded as accommodation paper, it would seem that it was then first delivered as a binding contract, and the action is maintainable. It is unquestioned law, that a note erroneously dated on Sunday may be shown to have been misdated, and proof may be received of its true date. Drake v. Rogers, 32 Maine, 524. So too, as between the parties, evidence may be received to prove that a transaction purporting to be of another date was in truth on .Sunday. But this suit is not between the original parties to the note. The plaintiffs claim the rights of bona fide indorsees. It is insisted in defence that, the defendant having violated the law and having falsely misdated his note, may, as against those who have relied upon the faith of his name, show that the note, which he caus.ed to be put in circulation, was illegal in its inception, and’was fraudulently misdated, for the error in its date could only have been for the purposes of decep [203] tion. But the defendant cannot be permitted to set up his own fraudulent misdating of his notes to defeat the rights of those, who parted with value upon the faith that his notes were dated when, by his signature thereto, he represented them to be. In Huston v. Young, 33 Maine, 85, an attempt was made to show the date of a note wrong, thereby injuriously to affect the rights of an indorsee, but the evidence was rejected. “He,” (the plaintiff,) remarks Wells, J., “ had no knowledge of any mistake in the date and had a right to regard it as correctly written. He was authorized to regard the note as the true exposition of the contract between the original parties, and he cannot be prejudiced in it, by any mistake of which he was ignorant.” In the present case, it is not questioned that the plaintiffs took the note in ignorance of its false date, and, as between them and the defendant, they have a right to regard its apparent as its real date. In Begbie v. Levi, 1 Crompt. & Jer., 180, a question arose on an acceptance alleged to have been signed on Sunday. It was, however, denied that it was given on that day, “ but, even assuming that it was, the Court,” says Garrow, B., “ would be clearly of opinion that it would not be competent to the defendant, who alone had been guilty of a breach of the law, to set up his own illegal act as a defence to the action, at the suit of an innocent holder of the bill.” It was held, in Houlister v. Parson, 9 Up. Can., 681, that a note made on Sunday, for goods, is not void in the hands of an innocent indorsee without notice. The same question again came before the Court of Queen’s Bench of Upper Canada, in Crombie v. Overholtzer, 11 Up. Can., 55. “ We take it to be clearly settled,” remarks Robinson, C. J., in the latter case, “ that when a statute does not provide that all securities shall be void, which shall be made in furtherance of such dealing as the statute prohibits, but merely prohibits the act and imposes a penalty, such statute has not the effect of making void, in the hands of an innocent indorsee for value, a negotiable instrument, which was made in furtherance of such a transaction.” The authorities upon the [204] subject are most fully examined in an elaborate opinion of Collier, C. J., in Saltmarsh v. Tuthill, 13 Ala., 390, in which it was decided, that a bona fide indorsee of a note before its maturity, though the note was made on Sunday, might recover, if he took the same without notice of any facts affecting its validity. So in State Capital Bank v. Thompson, 42 N. H., 369, it was held, that a negotiable promissory note made and delivered on Sunday, though illegal and voidable as between the original parties thereto, yet, when indorsed before maturity to a bona fide holder, without notice of any defect, could not be impeached in his hands. In Com. v. Kendig, 2 Barr., 448, there was evidence tending to show the bond in suit, which was an official one, to have been executed on Sunday, but the Court say, “granting that it was so, it is by no means clear that it is void as against those injured by the official misconduct of the officer, and entitled to claim the benefit of the bond, who were innocent parties, and not to be affected by the folly or turpitude of the obligors.” “ Such a construction of the act,” said the Court, “ would enable the obligors to take advantage of their own wrong as against persons who cannot, by any possibility, protect themselves. Where both parties’ are in default, there is a propriety in holding the bond void.” The evidence, that the note was dated on Sunday, cannot control or defeat the rights of the plaintiffs, who are shown to be bona fide holders without notice. Exceptions overruled. Tenney, C. J., Rice, Goodenow, Davis and Kent, JJ., concurred.