Poorman v. D. O. Mills & Co.

By the Court, Rhodes, J.: A certificate of deposit, issued by a bank or other depositary to a depositor, upon his paying to the former a sum of money on general, or, as it is sometimes called, irregular deposit, stating that the depositor has deposited that sum, payable to himself or order on demand, or on return of the certificate properly indorsed, is a promissory note. (Welton v. Adams, 4 Cal. 37; McMillan v. Richards, 9 Cal. 418; Coye v. Palmer, 16 Cal. 159; Brummagim v. Tallant, 29 Cal. 503; Bank of Orleans v. Merrill, 2 Hill, 295; Leavitt v. Palmer, 3 New York, 19; Payne v. Gardiner, 29 New York, 146.) It is elementary law that when a note is indorsed in blank the title and right of action pass by delivery; that while the indorsement remains in blank the note is payable to the bearer; and that the holder may write over the indorsement “pay to the order of (the bearer);” and that has the effect, in the hands of a bona fide holder, of an indorsement in full. (Chitty on Bills, 255.) This change from a blank to an indorsement in full is not usually made, and as it is a mere [121] matter of form it is not required to be done; and the note, with the blank indorsement, is admissible in evidence in support of the allegation that it was indorsed to the plaintiff by the payee. The execution of the certificate of deposit was not denied, and when it, together with the indorsement, was offered in evidence, no objection was made that the indorsement was not proven. Had objection been made, proof of that fact would have been required. (Pinkham v. McFarland, 5 Cal. 137.) The averment of the answer that the plaintiff is not the legal owner or holder of the certificate of deposit, raises no issue, for it is only an averment of a conclusion of law. It does not meet the allegation of indorsement, the fact upon which the plaintiff’s title depends. And it may be added, that the plaintiff’s allegation that he is the owner and holder of the certificate, and entitled to receive the money due thereon, is surplusage, for it is but a legal conclusion arising from the alleged indorsement. (Wedderspoon v. Rogers, 32 Cal. 569.) An indorsement to an agent transfers the title of the instrument, as to all the parties thereto, except his principal. (Story on Notes, Sec. 126.) It makes no difference to the maker whether he pays to the principal or his agent holding the instrument as an indorsee. The indorsee is presumed to be a holder for value, (Story on Prom. Notes, Sec. 196,) and the burden is on the defendant to rebut this presumption. Neither the question whether the plaintiff holds as an agent, nor the question whether he is a holder for value, can be considered on the motion for a nonsuit; for in either case the title is in the plaintiff, and he can maintain an action in his own name; but they may be important to the defendants, when they come to make their defense, relying upon any equities or defenses existing between them and parties to the certificate prior to the plaintiff Judgment reversed and cause remanded for a new trial.