Keyes v. Waters

The opinion of the court was delivered by Royce, J. The questions in this case arise upon the defendant’s declaration in offset. He declared against the plaintiff as endorsee of a negotiable note, which the latter had given to one Joseph Parker, Jr., and the questions are, — 1, Whether the declaration was such, in point of form, that the courts were justified in receiving it and acting upon it; 2, Whether the note was legally endorsed to the defendant; and 3, Whether the defendant gave the requisite notice, that he bad become the owner and endorsee of the note, for the purpose of setting off the same in this action. 1. The declaration in offset is defective and very informal, at best, when considered under our statute and practice. It would doubtless have been adjudged bad on demurrer, and perhaps on a motion in arrest. But the plaintiff saw fit to plead the general issue to it, and did not move in arrest. Therefore, as it counts upon the note with sufficient certainty, no question as to its sufficiency in other respects is properly before this court. 2. The objection here involves a question of identity, as well as upon the legal sufficiency of the endorsement. The first is answered by the case itself, which finds the payee and endorser to have been the same person. And we regard the second as being equally free from doubt. The note was negotiated directly from Parker to the defendants, and the terms of the endorsement were clearly sufficient, as between them, to transfer the legal property and right of action. Nor are we at liberty, in the absence of farther proof, to pronounce the transaction a mere agency, to enable the defendant to receive payment for .Parker. [483] 3. The case expressly states, that long before the commencement of the action, and before the assingment of the book account by the plaintiff to Zenas W. Keyes, the defendant produced the note in, the plaintiff’s presence, with the endorsement upon it, and, upon another occasion, notified him that he owned it. This was ample and sufficient notice, so far as the plaintiff was concerned. And we think, that, as the right to claim the offset had thus become perfected under/the statute, no subsequent arrangement between the plaintiff and a third person could impose upon the defendant the necessity of taking farther measures, in order to keep his right good. Indeed, according to the first ground of decision in Parker v. Kendall, 3 Vt. 540, notice to Zenas W. Keyes could neither be required, nor be of any avail, if given. But it appears, that, when the defendant was notified by Zenas W. Keyes of the assignment of the book account, he made no express objections against paying the account, to him, and did not claim to have any counter demand, except a book account in his own favor against the plaintiff. This is urged as a waiver of the right to claim an offset of the note. The case states, however, that he made no promise to pay the account to the assignee, as in Gould v. Chase, 16 Johns. 226; he was merely silent in reference to the note. Nor was he notified of an intended purchase of the account, as in King v. Foster el al., 16 Mass. 397. It is a familiar principle, to be sure, that, if a party, by his declarations, (or by his silence, according to the case last cited,) knowingly induces another to act in a matter affecting his interest, he shall be bound by the inference, which that other had a right to draw. But the assignee, in this instance, cannot be said to have acted in reliance upon the defendant’s declarations, or his silence; because the assignment had already taken place. Neither do we consider, that the defendant’s mention of his account alone, when notified of the assignment, should, under the circumstances, be held a waiver, or exclusion, of the right now asserted. So far as I am advised, the maxim — expressio unius exclusio est alterius — is never made the basis of a legal and conclusive presumption, except in the construction of statutes and written instruments. The result is, that in our opinion the conduct and declarations of the defendant upon the occasion mentioned, as also when he previously refused to be interro [484] gated, in the course of a certain trustee suit, as to his interest in the note, were mere matters of evidence, to be weighed in reference to the purpose and intended effect of the endorsement. We think they could have no other operation to affect the validity of the endorsement, or the legal right to claim the offset. And, as evidence, they were no doubt properly considered. Judgment of county court affirmed.