Habersham v. Lehman

Bleckley, Justice. 1. There were two grounds of objection to the introduction of the note in evidence, one of them being that the second indorsement showed the-instrument to be the property of the Atlanta Savings Bank,whose cashier had indorsed it over to one C. H. Dexter for collection. On the effect of an indorsement, by the payee in blank, followed by an indorsement in full by another person, see 1 Daniel on Neg. Ins., §696. Where a promissory note is payable to a named person or order, or to the order of a named person, and is indorsed in blank, it is then, until the blank is filled, payable to the holder, and any holder may receive payment, or sue and collect. Tli,e payee’s order to pay to any holder is not revoked or canceled by the order of some other person to pay to a particular individual. 2. The other ground of objection was that the indorsement of the payees purported to be executed by an attorney, and no power of attorney or other evidence of authority to indorse was produced. The Code, in section 2851, declares that “an indorsement or assignment of any bill, bond or note, when the same is sued on by the indorsee, need not be pioved unless denied on oath.” A plaintiff who derives his title through an indorsement in blank, is an indorsee, for he has the right to fill the blank and takes the place of indorsee in express words, so long as he holds the instrument. In strictness, the blank ought to be filled when, or before, the instrument is tendered in evidence, but the practice is to treat that as done which can be done, and so a blank indorsement is considered, for most purposes of the suit, as an express indorsement to the plaintiff, if the latter has possession of the paper. We think, too, the Code applies, and that proof of the indorsement is dispensed with, as well where the payees seem to have indorsed by agent or attorney as whore they purport to have indorsed in person. And if an agent or attorney can indorse for the payees (than which nothing is more certain), to take the [384] indorsement for granted without proof, is to take the authority of the agent or attorney for granted without proof; for the indorsement could uot, when executed by an agent or attorney, be the act of the payees unless it was duly authorized. We are further of opinion, in the light of the known practice under the Code, and under the statute prior to the Code, that the section which we have quoted dispenses with the proof of the indorsement, whether the action be against the indorser, upon the indorsement itself, or against the maker, upon the note. Indeed, this provision is inore applicable in the latter than in the former case; because, in the former, the general rule, found in sections 2851, 3i5í and 3172, as to pleas of non est faetum, would be directly applicable, and would be enough to entitle the plaintiff to go on against the indorser without proof of the indorsement, unless it was denied on oa.th. In the present ease, the plea, so far from denying the indorsement, seems to admit it. We think it does admit it, and then goes forward and makes a point upon the motive and purpose of it. 3. The evidence did not rebut the legal presumption that the plaintiff was entitled to the standing of a tona fide holder for value ; nor do we see that it made out any defense to the action on the merits. The evidence of fraud in procuring the note originally, amounted to nothing. The plea was wholly unsustaired. Judgment affirmed.