McLaren v. Marine Bank

McCay, Judge. 1. That parol evidence is inadmissible to show that a paper, on its face payable generally, Avas intended by the parties to it to be negotiated or payable at a chartered bank, has been definitely settled by this court in 4 Georgia, 106, and 30 Georgia, 271; and a contrary ruling would be a heavy blow to the negotiability of such instruments, since no one could ever know what was the truth as to a paper offered for negotiation. It is not necessary to go into the vexed question whether the Avord indorsers, in the act of 1826, includes drawers. The facts of this case sIioav that the acceptor was an accommodation acceptor, and in such cases the drawer is not entitled to notice, even at common law, unless he shows special damage from the want of notice. 2. The proof here, even as introduced by the defendants, shows that this draft was not the case of a draAver having funds in the hands of another, assigning those to another by a draft or bill of exchange. And this is the primary notion and object of a bill of exchange. Here the drawing, indorsing and accepting, are simultaneous, and they all take place before negotiation. The issuing of the bill was, in fact, by the nominal acceptor. Technically, when it got into his control, it was funetus officio, since, in form, he is the principal debtor. In truth, however, the paper was made and indorsed by the drawer that the acceptor might raise money upon it. It was intended by the parties as a paper to be negotiated on the credit of all whose names were on it. At the time of the drawing the drawer had no funds in the acceptor’s hands. On the contrary, he Avas largely in debt to the acceptor, and Avhen the note became due, he was still behind Avith the acceptor. Rust testifies that the draft Avas draAvn for the benefit of the acceptors, by the dratver, and to pay them his indebtedness. The draAver in this case Avas, in fact, the principal. In such cases he is not entitled to notice, and he can take no advantage of the Avant of it unless he prove he sustained special damage. The testimony of Rust, the defendant’s own witness, sliotvs that 134 at tlie maturity of the draft the drawer was still behind with the acceptors, and that this state of things still exists. The' excuse for want of notice is thus-fully made out. That is done by the very nature of the original transaction. The note was originally made to be negotiated on the credit of all the parties to the paper, and as between the parties, the drawer was contemplated and treated'as the principal debtor. If in consequence of the form of the paper — as that Sims & Rust were the nominal principals — the drawer sent them funds to pay, which they failed to appropriate, and damage-came to the drawer for want of notice — if this was, in fact, the truth, it was for the defendant to show. The proof of the original transaction excuses the notice until other facts appear. Judgment affirmed.