McCauley v. Gordon

Bleckley, Justice. There can be no doubt that to tamper with a promissory note so far as to insert in it the words “or bearer,” is grossly improper. It verges on forgery. The introduction of such words is a material alteration, for they go to modify the manner of negotiating' the instrument. Dudley R., 243. Without them, or words of similar import, the instrument is negotiable by indorsement only ; with them, it is negotiably by bare delivery as well as by indorsement. It is said they were immaterial in the present case for the reason that the note .was indorsed in blank before their insertion, and thereby the note had already become negotiable by delivery, the effect of indorsement in blank being to render it payable to any bearer. But the payee did not indorse, and the person who did indorse, though a partner of the payee, did not indorse in the partnership name or in his own name, but in the name of the payee ; and this he did without a.ny authority further than the general implied authority of the partnership relation. The partnership had an established partnership name, which was quite different from the name of the individual partner to whom the note was payable. The agency of a partner to sign for the partnership is generally restricted to siguing in the established partnership name, where the partnership has such a name. Let it be conceded that the note was partnership property, and that the partner who transferred it had a right to transfer it, we think that, without some special authority from the payee, he could not indorse it- in the name of the latter, and put it afloat with all the incidents of negotiable paper transferred before due: and if he could not do this, the words “or bearer,” had they been genuine, would or might have varied the rights of the holder,, and made these rights more comprehensive; and whatever would or might have had that effect cannot be treated as immaterial. There is a public policy to be subserved in guarding the purity and integrity of negotiable paper, and neither surreptitious in [225] terpolations in the body of the instrument, nor the indorsement by one man with the name of another, ought to be countenanced as a strictly commercial transaction in a doubtful case. On the face of the note is nothing whatever to indicate the connection of any partnership with it; and the operation of the indorsement in the name of the payee would be, prima facie, to render him, and him alone, liable upon the contract of indorsement. All interest of the partnership in the transaction depends upon evidence extrinsic of the note and of the indorsement, and this being so, the words “or bearer” have a material bearing upon the measure of evidence requisite to make a case for recovery by the holder against even the makers. As the note was not in fact indorsed by the payee, it is easy to see that the holder would be better off with the words “or bearer” in the terms of the instrument than if they were not there, since the want of them would place upon him the burden of proving that the indorsement was made with the payee’s authority, the plea putti.ng the genuineness of the indorsement in issue. In any and every view of the matter, the alteration was material, and the court erred in the instructions given to the jury. Judgment reversed.