Clark v. Sigourney

Storks, J. On the trial of this cause, several claims were made by the defendant, and overruled by the presiding judge, of which no notice has been taken on the argument here ; but as a new trial is to be had on another ground, and those points may again be raised, it is proper for us to express an opinion upon them. In Bound & al. v. Lathrop, 4 Conn. R. 336. it was decided, that the acknowledgment of one of several joint makers of a promissory note, was sufficient, to take it out of the statute of limitations as against the others, on the ground that the admissions of one of several joint contractors, in respect of the contract entered into, are evidence against all. It was decided also, in Coit v. Tracy & al., 8 Conn. R. 268. that the acknowledgment of a debt, by one joint debtor, is admissible evidence against all, to take the case out of the statute of limitations; although, under the circumstances of collusion disclosed in that case, it was held, that the acknowledgment was not sufficient for that purpose. If from the acknowledgment of one of several joint debtors, the law will imply a promise to pay the debt against the others, it is scarcely necessary to say, that an express promise to do so, made by one, will bind the others. Therefore, the evidence objected to, by the defendant, of the promises to pay the note in question, made to the executrix of the payee by Lloyd, a joint maker of it with the defendant, was properly admitted, unless it is objectionable on the ground that the defendant signed the note merely as Lloyd’s surety. — 517 — It is well settled, however, that neither the admissibility nor effect of the admission or promise, is varied by this circumstance. Sigourney v. Drury & al. 14 Pick. 387. Hunt v. Bridgham, 2 Pick. 581. Perham v. Raynal & al. 2 Bing. 306. (9 E. C. L. 413.) Burleigh v. Stott, 8 Barn. & Cres. 36. (15 E. C. L. 151.) Wyatt v. Hodson, 8 Bing. 309. (21 E. C. L. 301.) It is to be observed, that in the present case, there was no claim by the defendant, that the promise by Lloyd was made collusively ; and that as the question was submitted to the jury on the claim of the plaintiff, they have found that it was made fairly. The defendant also claimed, that the question, whether the promises proved to have been made by Lloyd, were sufficient to take the case out of the statute of limitations, should be submitted to the jury. The presiding judge, however, decided upon their sufficiency, and left it to the jury merely to find whether the promises were made as claimed by the plaintiff In this he was correct. Whether the promises were made, is a question of fact, to be determined by the jury; but what is the construction and effect of them, if made, is a question of law, to decide which, is the province of the court. The defendant further claimed on the trial, that there was a want of consideration for the note in question. It is found, that the consideration of this note was, that Caldwell and others had executed and delivered to Lloyd, at his special request, and at his sole risk, the deed produced on the trial, which was a release to him, without covenants, of all their right, title and interest in and to the land therein described. On these facts this objection was, in our opinion, unfounded. Any act done by the promisee, at the request of the promiser, by which the former sustains any loss, trouble or inconvenience, constitutes a sufficient consideration for a promise, although the latter obtains no advantage therefrom ; and in respect to the extent of such loss, trouble or inconvenience, it is immaterial that it is of the most trifling description, provided it be not utterly worthless, in fact and in law. Com. Dig. tit. Action upon the case upon Assumpsit. B. 1. Pillans & al. v. Van Mierop & al. 3 Burr. 1673. Jones v. Ashburnham & ux. 4 East 463. Pullin v. Stokes, 2 H. Bla. 312. Morley v. Boothby, 3 Bing. 107. 112. (11 E. C. L. 56, 7.) Willatts v. Kennedy, 8 Bing. 5.10. (21 E. C. L. 200. 202.) Sumner v. Williams, — 518 — 8 Mass R. 200. Stocking v. Sage it al. 1 Conn. R. 519. 1 Marsh. 535. 538. 2 Pet. 182. Chitt. Cout. 25. (4 Am. ed.) In Sturlyn v. Albany, Cro. Eliz. 67. it was held, that the showing of a deed by which rent was reserved, by the plaintiff, to the defendant, at the request of the latter, constituted a sufficient consideration for a promise by him topay the rent due: the court saying, that “ when a thing is to be done by the plaintiff, be it never so small, it is a sufficient consideration to ground an action.” That the execution and deliv. ery of the deed, in the present case, were at the request of the defendant, and were attended with at least some actual trouble and inconvenience, is, in our opinion, a sufficient consideration to support the promise declared on. Independent of this ground, we are by no means prepared to say, that a contract for the payment of a sum of money for the release of one’s right, title and interest in a piece of land, can be impugned for want of consideration, on the ground that no interest was acquired by the conveyance. By the very terms of such a contract, the risk and hazard of the title is assumed by the re-leasee ; and to hold, that he is excused from performing it, because he happened to acquire no interest by the release, would be to throw that risk and hazard upon the releasor, contrary to the plain intent of the parties. It is unnecessary, however, to consider this question. Barnum v. Barnum, 8 Conn. R. 469. We are then brought to consider the question which has been argued before us, as to the right of the plaintiff to maintain this suit on the facts admitted in the case, and those claimed to have been proved by the defendant. Those facts are, that the note in question was not negotiated by Caldwell, -the payee, ⅛ his life-time, but remained after its execution in his hands until his death, which was long after it fell due -after which it came into the hands of his executrix, who was -his widow, with the name of Caldwell written in blank by him on the back of it; and that the executrix subsequently -delivered it to the plaintiff, for a valuable consideration. There was no proof, nor was it claimed, that Caldwell, in his life-time, had made any contract or agreement with the plaintiff, or with any other person, to negotiate or transfer said note, except what might be inferred from the fact that his name was written as aforesaid on its back; nor was there — 519 — any evidence for what purpose his name was thus written. Under these circumstances, the note must be treated as an instrument with which the payee had done nothing previous to his death, except to write his name upon its back, unless by that act he is to be deemed to have conferred upon his executrix an authority to deliver it to some person after his death. As the plaintiff’ in his declaration alleges a title to this note, by an immediate indorsement of it to him, by the payee, it is necessary for him, in order to sustain that title, to prove such an indorsement. Indeed, if under a declaration adapted to the case, he had claimed title to it under a remote indorsement by the payee, it would likewise have been necessary to prove an indorsement by him: the note being drawn payable to the payee, or his order, a legal title could not be transferred to it, under which any other person could claim:, either directly or remotely, except by his indorsement. The question before us is, whether on the facts above stated, there was an indorsement of this note, by Caldwell to the plaintiff. To determine this, it is necessary to enquire, 1. whet her the writing of the name of the payee on the back of the note, constitutes ati indorsement of it to the holder, irrespective of the circumstances under which it came into his possession; and 2. whether, if it does not. a legal title to the note was vested in the plaintiff as indorsee, by the delivery of it to him by the executrix. The first question turns upon the legal import of the word indorsement. This is a technical, mercantile term, denoting the act by which the legal title to that particular class of bills of exchange and promissory notes which are drawn payable to order, is transferred. Like other technical words, it is used, in relation to those instruments, not in its strict etymological sense, which would imply that it was written on the back of them, as is evident from the circumstanee that what is, in legal signification, an indorsement of a bill or note, need not be written on that part of it; but in an artificial sense, to signify the transfer of the legal title to- these instruments. It is, therefore, like all other conveyances of property, a contract; and so far as it operates as a transfer of the bill or note, is of that class of contracts which are termed executed. An indorsement, however, in addition to being such a conveyance, imports a future liability on the part of the indorser, in the event — 520 — of a non-payment or non-aeeeptance, (as the ease may be,) -by prior parties respectively to these instruments, unless the indorsement, by its terms, is so restricted as to exempt him from such liability ; and so far as it respects that liability, it is an executory contract. Now, it is a universal principle, applicable to every contract, whether executed or executory, evidenced by a written instrument, that the instrument must be delivered, by the party making the transfer or promise, to the party to whom it is made, and accepted by the latter: the delivery by the former being evidence of his assent to the transfer or promise, and the acceptance by the latter, the evidence of his consent to receive it; and both unitedly showing the meeting of the minds of the parties in the transaction, which is the consummation of the contract. The delivery, however, need not be expressly proved, since it may be, and indeed usually is,presumed from circumstances, and especially from the fact that the instrument is in the possession of the party to whom it purports to have been made ; a presumption, however, which may be disproved. On principle, therefore, the mere act of writing the name of the payee on the back of the note, is not sufficient to constitute an indorsement of it; but to complete it as such, the further act of a delivery of it by him to the person to whom a title in it is intended to be transferred, is necessary. We are not, however, left to general reasoning on this point; as it has been judicially settled, in repeated instances. In Adams v. Jones, 12 Ad. & El. 455. (40 E. C. L. 94.) which was an action of assumpsit by the indorsee against the acceptor of a bill of exchange, drawn by F., and by him indorsed to the plaintiff, the plea was, -that F. indorsed it in blank, and delivered it to the plaintiff, as the agent of one R., to whom F. was indebted, for the purpose, and on the terms that the plaintiff should deliver it to R., on account of the debt; that the plaintiff received it as such agent only, and for such purpose, and without consideration ; that the plaintiff detained the bill, in breach of his duty, and in fraud of R., who claimed the bill, dissented from the action, and required the defendant not to pay the amount to the plaintiff. This plea was held good, after verdict. Lord Denman, C. J., in delivering the opinion of the court, says: “ The declaration avers, that Foulke indorsed the bill to the plaintiff. Now, a bill may be — 521 — indorsed to the party, in two ways — either by a special indorsement, making it payable to that party, or by a blank indorsement and delivery to that party. In the latter way, at all events, if not in the former, the bill must be delivered to' the party as indorsee, in order to constitute an indorsement to him. But this plea avers, that the bill was indorsed in blank, and delivered to the plaintiff, not as indorsee, but as agent only for another, to whom he was to deliver it, and who was the real indorsee. We think, therefore, that it is a constructive denial, that the bill was indorsed to the plaintiff, and that it is good in the present stage of proceedings, however open it may have been to a special demurrer.” In Marslon v. Allen, 8 Mees. & Wels. 494. which was an action of assumpsit on a bill of exchange, drawn by J. H. upon and accepted by the defendant, the declaration averred, that J. H. indorsed it to E. M., and E. M. indorsed it to the plaintiff. The plea was, that J. H. did not indorse the bill to E. M. At the trial, the plaintiff proved, that J. II. wrote his name on the back of the bill; that J. II. had received the bill as the accountant to the Imperial Bank, for a debt due to the bank ; and that J. H., after writing his name on it, had delivered it to W. M., who was also employed in the bank, to be kept for the bank, whose property it was; that E. M. had received the bill from W. M., for value, and indorsed and delivered it, for value, to the plaintiff The defendant proposed to show, that both E. M. and the plaintiff received the bill, with full knowledge of the fraud committed by W. M. in handing over the bill. The court rejected this evidence as inadmissible in support of the plea. The plaintiff obtained a verdict, and a new trial was granted. The court say, that if the facts stated had been proved, the jury ought to have found for the defendant on the issue that J. H. did not indorse the bill to E. M.; “ for,” they add, “ although there was an indorsement, there was no valid delivery by J. H., or by any authority from him, and so no competent transfer by indorsement of the bill to E. M.” Much reliance was placed on the case of Adams v. Jones, and also on the case of Brind v. Hampshire, 1 Mees. & Wels. 369. We have not access to the latter case ; but Alder son ^ B., in delivering the opinion of the court, after citing the decision in Adams v. Jones, says : “ In Brind v. Hampshire, this court came to the same conclusion, Lord — 522 — Abinger and Mr. Baron Park holding in that case, that a delivery to the indorsee is necessary to complete an indorsement ; by which these learned judges clearly mean, a transfer by indorsement.” And he subsequently adds : “ If then a transfer by indorsement, as we have before shown, consists in an indorsement, (or writing the name of the party transferring the bill, on the bill,) and a delivery for the purpose of completing such transfer, it will follow, that the issue ‘ did not indorsed involves both these propositions.” This principle is strongly confirmed, by the forms of declarations on indorsed bills and notes, which, until recently, always prevailed, and the reasons on which the mode of declaring, now more usually adopted, is sanctioned. It was formerly the invariable practice, after the averment that the payee ordered the sum of money mentioned in the instrument to be paid to the indorsee, to allege, that it was afterwards delivered to him by the payee. It is now more usual to state merely, that the payee indorsed the instrument to the indorsee, omitting the allegation of a delivery ; and this mode of declaring is sanctioned, on the ground that indorsing includes, ex vi termini, a delivery, and therefore, that it need not be expressly stated ; thus impliedly confirming the principle that a delivery is necessary. In the case of Clark v. Boyd, 2 Ham. R. 56. the note on which the suit was brought by the plaintiff, as indorsee, against the maker, was, at the time of the death of Pierce, the payee, found among his papers, indorsed by him to the plaintiff; and the executor of Pierce, supposing it to be the property of the plaintiff, had not inventoried it as part of the assets of Pierce, but had delivered it to the plaintiff. The facts, therefore, as it respects the questions which have been argued, were precisely like those in thef present case. The supreme court of Ohio held, in that case, that the jury were properly instructed, that the plaintiff could not recover, unless, in addition to the fact of executing the assignment, the note so assigned had been delivered to the plaintiff, or some person for his use. The point was also presented to them, whether a legal title to the note vested in the plaintiff, by the delivery of it to him by the executor, which is the remaining enquiry before us. On this question that court held, and we think correctly, that — 523 — the delivery by the executors, was not a sufficient delivery to transfer such a title to the plaintiff. If, as has been shown, the legal title to the note in question was not transferred, by the act of the payee, in writing his • name upon its back, without a delivery of it to the person to whom it was to be transferred, that title remained in the payee until his death. That act was a mere nullity. The name of the payee might have been legally erased by him ; or if not erased, the act of writing it was wholly inoperative, during his life. The legal title of the note, being in the payee at the time of his death, then vested in his executrix, as in the case of other personal estate ; and that title could be transferred only by her indorsement, because there is no other legal mode, by which a transfer of a bill or note payable to order, can be made. A mere delivery of the instrument by her to the plaintiff, without indorsement, therefore, vested in him an equitable title only. It was a delivery only of an instrument on which was no indorsement, in the legal sense of that term, and which could be legally transferred only by an indorsement. It is said, that the note came into the hands of the executrix, with the indorsement of the payee; and that she had a legal authority to do what she chose with it, and therefore to deliver it to the plaintiff. The fallacy of this argument consists in considering the mere writing of the name of the payee by him on the back of the note, as an indorsement. A legal indorsement, or transfer by indorsement, consisting of such a writing, conjointly with a delivery, and being merely inchoate and incomplete without a delivery, the result is, that, as there had been no delivery by the payee of the note, it came to the hands of his executrix without any indorsement, and therefore was not indorsed, in a legal sense, when it was delivered by her to the plaintiff. It is claimed, that from the facts in the case, an authority is to be implied, from the payee to his executrix, to deliver the note after his death, as a note indorsed by him. In the first place, we do not think, that such an inference can justly be made; but, in the next place, if it could, any such authority must have been determined by his death, and the delivery, therefore, cannot be considered valid, on the ground that it was made by the executrix as his agent. Galt & al. v. Galloway, 4 Pet. 332. 344. — 524 — In whatever light, therefore, the subject is considered, we think that the plaintiff could not recover, for the want of a legal title to the note. Although the defence may seem to be of a technical character, we cannot resist it, without disregarding established principles, and confounding the distinction between legal and equitable rights. The objection to a recovery here, is, that the plaintiff has acquired no legal title or interest in the note in question, because it has never been indorsed, by the payee or his executrix, without which no legal title to it can be transferred; and it is hardly necessary to say, that no person, without a legal title to the instrument, can, in a court of law, sustain an action upon it. It is unnecessary to consider how this question would have stood, if the plaintiff had become the holder of the note in question previous to its becoming due. It being received by him afterwards, he does not stand in the situation of a bona fide holder for value ; and the note in his hands is, therefore, subject to the defence which is here setup. This point was expressly decided in Marston v. Allen, which has been before cited. A new trial is therefore advised. In this opinion, Church and Hinman, Js. concurred.