Connelly v. McKean

The opinion of the court was delivered, by Sharswood, J. — Had the case been tried below on the general [117] issue under the plea of non assumpsit, the several drafts offered, as well as the letter of Tyler, dated June 7th 1861, and the testimony of Mr. Bayard, would have been competent evidence as tending to show the relations between the parties, that their course of 'business was to lend their names to each other to raise money, and that the note declared on was of that character. Indeed the letter of June 7th 1861 is hardly susceptible of any other construction. It is dated at Washington two days after the note sued upon. It is not the letter of a creditor to his debtor, but of an embarrassed man struggling with difficulties, and appealing to his friend to whom it was addressed for assistance. He had received a letter from Connelly on June 6th, which it is highly probable was dated June 5th, and enclosed the note of that date. He did not offer it for discount, for then it would have been endorsed, but he immediately telegraphed to New York to know if it would be discounted, and received a negative answer. It failed to accomplish its object, was laid aside and probably forgotten by both. On what other theory can the possession by Connelly of Tyler’s drafts, accepted but not endorsed, to the amount of $7000, be accounted for? It looks very much as if they were unsuccessful attempts of the same kind. That one of them for $5000 is in favor of a cashier is a very significant fact in confirmation of the same view. To rebut it, it should appear that Tyler had funds in Connelly’s hands on which he had a right to draw to that amount. Let it be borne in mind that both parties are dead; that Connelly the alleged debtor died in February 1868, eighteen months after the maturity of the note, and that Tyler the alleged creditor survived him two years without making any claim on his estate; that Tyler was in embarrassed circumstances, and Connelly and his estate solvent and well able to pay. This note is found among Tyler’s papers after his death, and suit is brought upon it by his administrator against the administrator of Connelly nearly six years after its maturity. All this was evidence, from which, if uncontradicted and unexplained, a jury might fairly and reasonably infer that the relation between the parties at the time of Connelly’s death was not that of debtor and creditor. The difficulty, however, is that the only plea was payment, which of course admitted the original liability. The draft of June 30th 1859, long anterior to the giving of the note, was irrelevant to this issue. So was the letter of June 7th 1861. The paper in Connelly’s handwriting, not addressed to Tyler, and no notice given to produce the original, was clearly inadmissible, as was the entry on the check-book of Connelly of the check of $500 in favor of Tyler — the entry of the loan of $50, and the testimony of Mr. Bayard, as tending in no way to prove payment. But the other drafts referred to in the 1st, 2d, 3d, 4th and 10th assignments of error stand on a different footing. The first, indeed, [118] which refers to the draft at sight for $600, dated June 12th 1861, cannot be sustained, for the bill was prior to the maturity of the note in suit and without more was no evidence of payment. The others, however, are subsequent in date. The objection is, that they did not appear to have ever been in circulation, and that it is necessary to give some evidence ?of that before a bill produced by an acceptor raises any presumption that it has been paid by him. It was so held by Lord Ellenborough in Pfiel v. Vanbatenburg, 2 Campb. 439, and it seems to be adopted by the elementary writers without question: 2 Greenlf. § 527; Story on Notes, § 452; Byles on Bills 222. The plaintiff’s case was that he had accepted and paid several bills of exchange for the defendant’s accommodation. Lord Ellenborough is reported to have said: “ Show that the bills were once in circulation after being accepted, and I will presume that they got back to the acceptor’s hands by his having paid them. But when he merely produces them, how do I know that they were in the hands of the payee or any endorsee, with his name upon them as acceptor ? ■ It is very possible that when they were left for acceptance he refused to deliver them back, and having detained them ever since, now produces them as evidence of a loan of money.” Undoubtedly they were no evidence of a loan, but having proved that they were originally lent, of which the report does not state that there was any evidence, why should not the possession of them by the acceptor after maturity raise the presumption that he had paid them ? With the highest respect tó so great an authority upon Nisi Prius law, I may be allowed to express a doubt as to the sufficiency of the reason. Contrary to established principle, it presumes a fraud to have been perpetrated, when the natural presumption is that which consists with honesty. Besides which it assumes that the holder acquiesced in a palpable wrong. If the drawee retains the bill an unwarrantable time, the holder could sue him in trover. It is a reason which applies as well to a bill which had been negotiated before acceptance; for the endorsee may leave it in the hands of the drawee for acceptance. When the bill is presented, it is reasonable that the drawee should be allowed some time to deliberate whether he will accept or no. It seems that he may demand twenty-four hours for this purpose, and that the holder will be justified in leaving the bill with him for this period: Byles on Bills 177. So that even an endorsed bill, produced by the acceptor after maturity, would not be evidence of payment if this be a sound reason. But surely endorsed bills, checks or orders for the payment of money or delivery of goods are primá facie evidence, according to the general current of the authorities. So it was expressly held by Lord Kenyon, in Egg v. Barnett, 3 Esp. Rep. 196, that to prove payment of a debt due by the defendant to the plaintiff, a check on a banker in his favor and endorsed by him, was evidence to go to the jury of payment. [119] Lord Kenyon said: “ This is not merely using the name in the body of the draft, which is arbitrary, and would of itself be certainly no evidence, but here the money has been actually received by the plaintiff and his servant, for their names are put on the backs of the checks as receiving the money. This is evidence to go to the jury.” See Gibbon v. Featherstonhaugh, 1 Starkie 225; Brembridge v. Osborne, Id. 374; Shepherd v. Currie, Id. 454; Patton v. Ash, 7 S. & B. 116; Weidner v. Schweigart, 9 Id. 385; Garloch v. Geartner, 7 Wend. 198; Alvord v. Baker, 9 Wend. 323; Hill v. Gayle, 1 Alabama 275. The true and valid objection to all the drafts offered in evidence below, except that contained in the 10th assignment, is that they were not endorsed by the payees. The drawer had stipulated that they should be paid to their order, and he had a right to their endorsement as his voucher against them. A payment by the acceptor without such endorsement in blank, would render it necessary for him to prove actual payment to them. For this reason these drafts were also rightly rejected. But this reason does not apply to the draft dated August 21st 1861, drawn as it is expressed “ to the order of myself (H. Tyler)” for $1000. We are of the opinion that it was evidence to go to the jury to that amount. If there were no other transactions between the parties it would be strong evidence of payment on account of this debt: if however there were other transactions it would be entitled to more or less weight according to the circumstances in evidence going to show that it was applied to the debt in suit: Byles on Bills 222; Murphy v. Richardson, 9 Casey 235. Tyler’s own endorsement is not necessary to him as a voucher against any body in a bill drawn to his own order. If he had made a special endorsement to another, then the endorsement of that other would have been necessary or some proof of payment to him. It was decided in Smith v. McClure, 5 East 476, that a bill payable to the drawer’s own order is payable to himself, if he did not order it to be paid to any other; and no such order appearing, it must be presumed that none was made. Mr. Chitty tells us that a person in possession of a bill payable to his own order is a holder, though it was once thought that he had only authority to endorse: Chitty on Bills 365; and that he may count upon it as payable to himself: Id. 571; and it was held in Titcomb v. Thomas, 5 Greenl. 282, that a bill payable to the order of the drawer and not endorsed, may be assigned for valuable consideration by delivery only, and an action for the benefit of the assignee will lie against the acceptor in the name of the drawer, as on a bill payable to himself. It follows logically that the acceptor need not require the endorsement of the drawer to be placed on the bill before payment. The possession of the draft by him after maturity shows primfi. facie that he has paid it to the right person — the drawer himself. Judgment reversed, and venire facias de novo awarded.