Tarbell v. Sturtevant

The opinion of the court was delivered by Isham, J. The judgment of the county court in this case must be affirmed. The evidence offered by the defendant, as between these parties, was properly rejected. If this suit had been brought against the payee of the note, who was the plaintiff’s immediate indorser, the testimony possibly would have been admissible ; for as between them, the effect of the tender, whether made by him or Mr. Chapman as his assignee, would directly arise. The plaintiff’s interest in the note, as against the payee, was only to the extent of the money loaned or advanced, and a recovery would be limited to that amount. This suit, however, is not between these [517] parties, but is brought by the indorsee against the maker of the note. The question arises whether these facts constitute a defense for him; in other words, is the defendant as maker of the note, absolved, by that tender, from all legal obligation to pay.it to the plaintiff, to whom the payee has directed it to be paid. On this question, it is to be observed, that the defendant does not pretend but that he justly owes the debt; or that he has any defense, legal or equitable, which should shield him from the payment of it to some one. It is therefore quite immaterial to him, to whom he pays it, or who recovers upon it, provided when the payment is made, or a recovery had, it will bar any further claim on the note by others. "When the maker has a good defense to the note as between him and the payee,, but is prevented from making it, in consequence of the note having passed into the hands of an indorsee, it may be proper to show the circumstances under which .the indorsement was made, as that it was indorsed to him past due, or that he is not, for other reasons, the Iona fide holder of the note. This evidence may be proper in many cases, for the purpose of subjecting the note in the hands of the Indorsee to a defense existing between the original parties. Aside from that consideration, where there is no illegality in the transaction, we apprehend, such testimony is inadmissible. There is a manifest impropriety in determining the controverted matters between the indorsee and the payee, or one having his interest, in a suit against the maker of the note, when the maker is a stranger to the transaction, and which in no way lessens, or affects his liability on the note. The indorsement, in this case, was an order upon the defendant, and a direction to him, by the payee, to pay the amount of that note to the plaintiff; and as it was indorsed for money then paid or advanced, that indorsement was irrevocable. Chitty on Bills 268. It could not have been indorsed’for a less sum than was due on its face. Smith’s Mer. Law 274 Douglas v. Wilkinson, 6 Wend. 637. Chitty on Bills 262. Its legal effect, therefore, was to vest in the plaintiff the title to the note, and the right to recover the whole amount due thereon, as against the maker, and hold the surplus, after the payment of his claim, as trustee for the payee, or Mr. Chapman as his assignee. In the case of Bowman v. Wood, 15 Mass. 534, the note was received as collateral security for a debt which was in the plaintiff’s hands as sheriff. In that [518] casa the court remarked “ that the note was put into his hands as “ a pledge, with the name of the promisee indorsed upon it. This “ was a transfer sufficient to enable the plaintiff to maintain the “ action; for the indorsement comprehended an authority to bring “ a suit, and to receive the money of the promisor.” The general rule is now well sustained by authorities, that when one receives a note as collateral security for money advanced at the time of the indorsement, or for any consideration then arising, the holder is treated as having received the note for value, and is entitled to recover the amount of the maker. Story on Bills § 192, and note 3. Bosanquet v. Dadman, 1 Starkie 1. Spring’s Appeal 10 Barr. 235. Swift v. Tyson, 16 Peters 15. We are satisfied from the authorities, that the title of the plaintiff to this note is sufficient to enable him to recover the amount of the maker, and that a payment to him will be a discharge of the maker’s liability to others. Under these circumstances, the fact that it was received as collateral security for money then ad-, vanced, does not alter his liability to pay the note to the plaintiff. The testimony, so far as the maker of the note is concerned is wholly immaterial, and was properly rejected. It is the duty of the maker of the note to pay it to the person legally entitled to receive it, and to whom the payee has ordered its contents to be paid; and leave the plaintiff and the payee, or Mr. Chapman as his assignee, to settle their conflicting claims between themselves. Judgment affirmed.