Bristol v. Warner

Chübch, Ch. J. 1. The question first presented by this [17] motion, is, whether the note in controversy imports, on its face, a valuable consideration ? We think it does ; and that the charge to the jury on this point, was correct. It has now become the settled law of this state, after a time of some doubt, that a promissory note not negotiable, and not purporting on its face to be for value received, does not imply a consideration ; and that a plaintiff, prosecuting such a note, is left to prove one, or fail to recover. Edgerton v. Edgerton, 8 Conn. R. 6. But this note, is, in form, negotiable, though not yet negotiated ; and no consideration is expressed in it. And therefore, it was claimed at the trial, that it should be treated as if it were not negotiable paper ; — that it, being a simple contract, and as yet confined in its operation to the original parties to it, required proof of consideration. But we believe that the negotiability of the note gave it a character and a credit at its inception, then importing a consideration, as well between payer and payee, as between the maker and indorsees or subsequent holders. We suppose this court so regarded it, in the case of Camp v. Tompkins, 9 Conn. R. 545. in which it is said, that such instruments, as well as bills of exchange, from their very nature, import a consideration. Our statute making a certain description of notes negotiable, intended to give to them the same effect here, as such paper was known to have in England, and in the commercial community generally. The most respectable elementary writers upon this branch of the law, treat this as a well established principle. Mr. Chilly says : “ In the case of bills of exchange and promissory notes, they are presumed to have been on good consideration ; and it is not necessary for the plaintiff to state any in his declaration, or prove it, in the first instance, on the trial, &c.” Evans, in his learned commentary on Pothier, remarks, that “ the case of bills of exchange and promissory notes, affords, in some degree, an exception to the general rule, which has been under discussion, when they are indorsed over for a valuable consideration ; the want of consideration, between the original parties, is immaterial; as between them, a consideration is presumed; but if the contrary is shown, it is a sufficient defence.” Chancellor Kent, in his commentaries, speaks thus: “ It is usual to insert value received in a bill [18] or nGte; ^ut this is unnecessary, and value is implied in - every bill, note, or indorsement.” Chitty on Bills, 67. 2 Pothier on Obligations, 22. 3 Kent’s Com. 50. 1 Stephens’ p. 766. Goshen & Minisink Turnpike Co. v. Hurtin, 9 Johns. R. 217. Mandeville v. Welch, 5 Wheat. 277. 2 McLean, 212. And yet, there is an essential difference between promissory notes, before they are indorsed and after-wards, in respect to their original consideration. In the former case, a consideration is implied, but may be denied in defence ; while in the latter, only in special cases : it cannot be disputed, if the holder be a meritorious one, receiving the paper before due. 2. It is said, that this paper is merely testamentary, and should have been proceeded with, as such, in the probate court. We see nothing of this character attached to it, either upon its face, or from the circumstances claimed to have been connected with its execution. To be sure, it is payable after the death of the maker; but this alone does not constitute it a will. Notwithstanding this, it is only what it purports to be, — a promissory note. It is an obligation to pay; it was delivered to the payee, as an evidence of debt; and it is made payable to order, as a negotiable and irrevocable instrument. Burgh v. Preston, 8 Term R. 483. 480. Roffey v. Greenwell, 10 Ad. & El. 222. (37 E. C. L. 99.) Stein & al. v. North, 3 Yeates, 324. Toner v. Taggart, 5 Binn. 490. There are a few cases, in which, papers not strictly testamentary in their object, have, however, been treated as such, when otherwise, they would entirely fail of effect: and we recollect no case, nor do we know of any good reason, why an instrument intended as obligatory inter vivos, should be construed or treated as a will, except for the cause suggested. Masterman v. Maberly, 2 Hagg. 235. (4 E. Ecc. R. 103.) 3. The defendant offered in evidence a copy of the accounts of the deceased, under the circumstances stated in the motion, for the purpose of proving that the plaintiff had been paid for the services, which, he now claims, constituted the consideration of this note. This paper was in the hand-writing of Joseph Hale, since deceased, who was one of the arbitrators, to whom the parties had submitted their matters [19] for adjustment; but when this copy was made, or for what purpose, was not disclosed; nor did it even appear that it-was present before the arbitrators, or that the plaintiff ever knew of its existence. Therefore, no foundation was laid for the admission of this evidence, and it was properly rejected. 4. To show that nothing was due to the plaintiff, the defendant, among other evidence, read the plaintiff’s letter, dated January 30th, 1845 ; and he especially relied upon a discharge, dated March 16th, 1825, as a defence to the action. To repel this, the plaintiff referred to the same letter, and claimed, that in this respect, it furnished evidence in his favour; and this the defendant denied, and objected to its being considered by the jury for that purpose. The judge, as to this, charged, that the defendant, having himself introduced the plaintiff’s letter, had thus made it substantive evidence in the cause. We see no good objection to this instruction. The defendant, with his eyes open, read to the jury the whole of the plaintiff’s letter as evidence ; and therefore, made the whole of it evidence, to which either party had a right to refer, and upon it,, to rest an argument and a claim. By “ substantive evidence,” the judge did not mean conclusive evidence, nor even evidence which the jury was bound to believe ; but only that it was, if true, relevant to the matter in dispute, to prove or disprove, as distinguished from mere explanatory evidence. If a party reads a will, or other document, in evidence, in which there may appear to be inconsistent provisions, he makes the whole substantive evidence in the cause, as well for the benefit of his adversary as himself. Gough v. St. John, 16 Wend. 646. Vibbard v. Stoats, 8 Hill, 144. Field v. Hitchcock, 17 Pick. 182. Randle & al. v. Blackburn, 5 Taun. 245. We do not think that the reasons offered for a new trial are sufficient. In this opinion the other Judges concurred. New trial not to be granted.