Finch v. De Forest

Hinman, J. The court below was of opinion, that if the payee, intending to negotiate the note in suit, indorsed it, such indorsement operated to transfer the legal title to the indorsee, notwithstanding it was made in the name of a co-partnership, of which the payee was a member, and not in his individual name; and the only question in the case, is, whether this opinion is erroneous. It is familiar law, that if one be sued alone on a promise made by him jointly with others, and the nonjoinder of the other contracting parties is not pleaded in abatement, there is no variance between the promise declared on and the promise proved. And the reason is, because it is still the promise, though not the sole promise, of the party sued. So, if two should join in a conveyance of property, which belonged to one of them alone; no body would claim, that the title would not pass to the vendee. But the reason why it would pass, is, because it would still be the conveyance of the party having the legal title, though not his sole conveyance. Now, the indorsement of a negotiable note is an order, by the indorser, to pay the contents of it to the indorsee; and this, being in writing, operates to transfer the legal title to the indorsee. But is it any the less the order of the payee, because it is the order of him and another? May it not, with truth, still be said to be the indorsement, though not the sole indorsement, of the payee? But if it is the indorsement of the payee, it transfers the title; and that is enough for the purposes of this case. Upon this short view of the matter, therefore, we are of opinion, that the note was properly admitted in evidence, and that there was no error in the charge to the jury; consequently, a new trial is not advised. In this opinion, the other Judges concurred.