Carnright v. Gray

Landon, J. The jury decided the signature to be genuine upon testimony which, no doubt, admitted of a decision either way. This issue was sharply litigated. In the absence of any erroneous ruling, we ought not to set aside the verdict upon this issue. The plaintiff, in the first instance, rested his case without showing any consideration other than that which the note and his possession and production of it imported. The trial court refused to non-suit the plaintiff, and held that, if the note was genuine, there was a presumption of consideration sufficient to authorize a recovery, and that the burden rested upon the defendants to overthrow it; that the absence of words of negotiability, or expressing a consideration, did not change the rule. The defendants excepted. Testimony was then given by the defendants tending to show that it was improbable that the plaintiff had any money to loan, or that the testator would have borrowed it; that the parties were unfriendly to each other. The plaintiff then adduce® some testimony tending to impair this position of the defendants. The plaintiff did not attempt to show what the actual consideration was. The court charged the jury that the note, if genuine, imported a consideration, and that the burden rested upon the defendants to show that it was without consideration. Undoubtedly, the rule is that the plaintiff, by producing the note and proving the signature, makes out a prima facie case of consideration, and, if nothing more is offered, is entitled to recover; but, if this prima facie case is assailed by evidence tending to disprove it, the burden of establishing the consideration upon the whole case rests-with the plaintiff. Perley v. Perley, 144 Mass. 104, 10 N. E. Rep. 726. When the transaction which resulted in 279 giving the note is disclosed by the evidence, it is plain that the question of consideration should be determined upon the actual facts, instead of upon the presumption which the note affords. Bruyn v. Russell, 4 N. Y. Supp. 784. But in the present case the evidence does not disclose the transaction which resulted in giving the note. Its tendency, so far as it has any, is to show that it is improbable that the parties should have had such dealings with each other as to result in this note, or any other like it. This evidence goes to the genuineness of the note, not to its consideration. But the jury havefoundthe note to be genuine. There is nothing in the testimony, assuming the note to be genuine, that would sustain a verdict that there was no consideration. The evidence tends to show that the testator would not have given the plaintiff a note except upon consideration. The appeal thus depends upon the question whether this note on its face imports a consideration. The note in question contains no words of negotiability. It is therefore not negotiable. McMullen v. Rafferty, 89 N. Y. 456; Cromwell v. Hewitt, 40 N. Y. 491. Hon-negotiable notes differ from negotiable ones in the particular that the indorser is regarded as a maker or guarantor, and not as a simple indorser, (same cases;) also in the further particular that the equities between the parties are not cut off by transfer to a bona fide purchaser for value before maturity,(Moule v. Crawford, 14 Hun, 193; Lee v. Swift, 1 Denio, 565; Barrick v, Austin, 21 Barb. 241.) But they are regarded as promissory notes under the statute of 3 & 4 Anne, c. 9, (1704,) enacted in this state in 1801, (1 Rev. Law, 151,) and in the Revised Statutes, (volume 1, marg. p. 768, §§ 1, 4,) as follows; “Section 1. All notes in writing, made and signed by any person, whereby he shall promise to pay to any other person, or his order, or to the order of any other person, or unto the bearer, any sum of money therein mentioned, shall be due and payable, as therein expressed; and shall have the same effect, and be negotiable in like manner, as inland bills of exchange, according to the custom of merchants.” “Sec. 4. The payees and indorsees of every such note payable to them or their order, and the holders of every such note payable to bearer, may maintain actions for the sums of money therein mentioned, against the makers and indorsers of the same, respectively, in like manner as in cases of inland bills of exchange, and not otherwise.” Before the statute of Anne, inland bills of exchange and promissory notes payable to the order of the payee were, by the custom of merchants, negotiable. With respect to inland bills of exchange, it was held that the indorsee could recover of the maker or acceptor as the case might require, and that the custom of merchants had become the common law. It was held the same way in several cases with respect to promissory notes, but in Clerke v. Martin, 2 Ld. Raym. 757, 1 Salk. 129, Lord Holt, C. J., held that the merchants could not change the law; and in Potter v. Pearson, 2 Ld. Raym. 759, I Salk. 129, Lord Holt held that “this custom to oblige one to pay by note without consideration is void and against law.” The statute of Anne was enacted to reverse the ruling of Lord Holt, and to place promissory notes upon the same footing as inland bills of exchange, with respect to their negotiability and effect. The indorsee or transferee can recover upon them. See Dunlop v. Silver, 1 Cranch, 367, for a full exposition of the law and cases leading to the statute of Anne. The sections of our Revised Statutes above quoted are a substantial re-enactment of the statute of Anne. Both statutes by their terms refer to negotiable notes. They shall “be due and payable as therein expressed.” nothing is said in the statute about consideration, and hence the notes need recite none. The English courts, however, regarding the statute as remedial, extended the benefit of it beyond its literal terms, and held that non-negotiable notes came within it, and that the payee could maintain an action within the statute against the maker. Kyd, Bills, 65, (published in 1790;) Smith v. Kendall, 6 Term R. 123, 1 Esp. 231; Burchell v. Slocock, 2 Ld. Raym. 1545. That is to say, the payee could declare upon 280 the note under the statute, instead of declaring upon the consideration or transaction which led to the giving of the note. If the non-negotiable note was within the statute, it imported a consideration without reciting it. Such being the rule in England, it seems to have been assumed to be the rule in this state. In Downing v. Backenstoes, 3 Caines, 137, the note was non-negotiable and was declared upon as within the statute. The defendant demurred upon the ground that the note was not within the statute, and therefore the declaration was bad because it did not allege the transaction and consideration upon which the note was given. The report states that counsel for defendant confessed that, if the case were to be determined on the English ■decisions, it would be against him, but if it were res integra in this court he had much to say. The court said: “The very point was settled in Green v. Long, (April term, 1798,) in conformity to the adjudications in Westminster Hall. Judgment for plaintiff. ” We understand that the rule thus announced has ever since been followed in this state, without question. President, etc., v. Hurtin, 9 Johns. 217; Kimball v. Huntington, 10 Wend. 675. Paine v. Noelke, 53 How. Fr. 273, 3 Kent, Comm. 77. The same rule prevails in Massachusetts. Townsend v. Derby, 3 Metc. (Mass.) 367; Dean v. Carruth, 108 Mass. 242. The statute of Anne, though not enacted in that state, seems to be regarded as declaratory of the common law. Richards v. Barlow, 140 Mass. 218, 6 N. E. Rep. 68. No definition of a “promissory note” requires the use of the words “value received.” It is an unconditional promise in writing to pay a specified sum of money to another at some time certain to arrive. Buller, Trials, (Ed. 1788,) 272 ; 2 Bl. Comm. 467; 3 Kent, Comm. 75; Kyd, Bills. 18. This definition, in substance, is in all elementary books. Negotiability is not an essential quality of a promissory note." Sibley v. Phelps, 6 Cush. 172. Of course, if both negotiable and non-negotiable notes are ' within the statute, neither needs the words “value received.” Very possibly different rules prevail in different states. As was said by counsel in Downing v. Backenstoes, supra, if the question were res integra in this court, much could be said; but it seems to have been so early and positively settled' that very little can be found in our Reports upon the subject. Judgment affirmed, with costs.