Willis v. French

Haskell, J. The payee of a negotiable promise in writing, who transfers the same by indorsement, either before or after maturity, whether it be strictly commercial paper or quasi such, that is, negotiable in form but lacking some elements of such paper, as town orders, always subject to equitable defenses whosoever the holder may be, thereby guarantees both the genuineness of the writing and the validity of. the promise. If the writing be forged, or the promise be void, as ultra vires, the indorsee may elect to repudiate the contract of indorsement and sue for the consideration paid,.or treat it as valid so far as the indorser is concerned, for he is estopped from denying its validity, and hold him according to its tenor. Furgerson v. Staples, 82 Maine, 159. If the indorsee repudiates the contract and sues to recover the money that he paid for it, his cause of action ordinarily accrues at the time he paid his money, and becomes barred after the lapse of six years. Blethen v. Lovering, 58 Maine, 437; but, if he stands by his contract and elects to hold his indorser to his warranty, to payment according to the terms of the indorsement, then, of course, his cause of action accrues when the indorsed promise falls due. In this case, the defendants, as payees, transferred by indorsement to the plaintiff, for value, two town orders, more than six years prior to the date of Ms writ; so that, his action is barred, mnless the orders are held to have been given on ten years’ time. The orders bear date June 1, 1870, and were directed to the down treasurer, requesting him : "Pay to S. & C. W. French ■or order five hundred dollars, it being for money loaned, agreeable to a vote of the town passed April 25, 1870, and interest annually.” They were signed by the selectmen and accepted by the treasurer of the town on the day of their date. A plain [599] construction of these orders is a request to the town treasurer to pay agreeable to a vote of the town, they having been given for money loaned. The vote became a part of these orders, and, if they were given according to its provisions, its terms, as to payment, fixed the time when the orders should fall due. The vote authorized a loan of two thousand dollars to the defendants for ten years, without interest, in town orders payable to their order, at the expiration of that time, with interest annually, upon condition that they should rebuild their mill, &c., and mortgage it to the town to secure their notes to the town for two thousand dollars, payable in ten years, without interest. The defendant complied with all the conditions to entitle them to the orders in suit. In short, the town gave its notes to the defendants on ten years with interest annually, in exchange for their notes of the same amount, on the same time, without interest; or, in other words, promised to give them interest upon two thousand dollars for ten years, as an inducement to continue their manufacturing business in the town. The plaintiff bought these orders from the defendants in good faith, for valuable consideration. They have had the plaintiff’s money, and the use of it for ten years until the orders were supposed to fall due, and why should they not be held to repay the same ? Certainly, as between the plaintiff and the defendants, there are no equities to shield the latter from payment. They had the money and should account for it to some one ; and, if they pay it to the plaintiff, they cannot be held to pay it again upon their notes to the town. Because the town may not be held by law to give the defendants interest upon two thousand dollars for ten years, it is hard to require the plaintiff to give them both principal and interest. Suppose the vote of the town had been printed upon the backs of these orders, as customary in many cases, would it be contended that the terms of the votes did not fix the time when the orders should become payable ? The liability of these defendants is the same as though the orders were valid obligations of the town. Their indorsement of them guarantees their validity. [600] The orders refer to the vote in specific terms as controlling the transaction. They recite the date of its passage, making its identity certain. The court considers that a fair construction of the orders, controlled by the terms of the vote of the town, makes them payable at the expiration of ten years, and not before. That all parties so considered the contract is clearly shown by their acts. Town orders are not strictly commercial paper; but, when negotiable, may be transferred as if they were. They are ordinarily drawn and negotiated by plain men, and should be given a sensible construction. By apt punctuation these orders read: Pay five hundred dollars, it being for money loaned, agreeable to a vote of the town passed April 25, 1870 ; or, to put it more plainly: Pay five hundred dollars agreeable to a vote of the town, it being for money loaned. The action is not barred by the statute of limitations. Exceptions sustained. Peters, C. J., Virgin, Libbey, Foster and Whitehouse, JJ., concurred.