Morey v. Wakefield

The opinion of the court was delivered by Pierpoint, C. J. This action is brought by the plaintiff as the indorsee of a promissory note, given by the defendant to J. B. & H. Smith or bearer, payable on demand with interest, dated the 13th day of July, 1865, and sold and indorsed to the plaintiff by the payees in the fore part of May, 1866. It is conceded that this note was given for intoxicating liquor bought by the maker, of the payees, to bo sold in violation of law, and under such circumstances that, as between the original parties to it, it could not be enforced. The plaintiff claims to recover on the ground that he is an innocent holder for value, ignorant of the consideration'for which' it was given, and that he took it in the due1 course of business, while it was current and before it was due. The first question that naturally suggests itself, is whether the-plaintiff did in fact take this note while current and before it was due. If he did not, the other questions which have been discussed, become immaterial, as no question is made by the plaintiff but that, if he took the note when past due, he took it subject [27] to all defenses that would have been available if the suit bad been by the original payees. The note was payable on demand with interest, and was taken by the plaintiff of the payees about ten months after it was executed. Was the note then past due ? We do not now consider this an open question in this state; certainly not, so far as defenses by the maker are concerned. This precise question arose in Camp v. Clark and trustee, 14 Vt., 387. In that case the court held that a note payable on demand with interest, and negotiated two months after its date, was negotiated when it was past due, and held the maker liable as the trustee of the original payee, although, as the law then stood in this state, no maker of a negotiable note could be made liable as trustee of the payee, until the note had become due in his hands unnegotiated. We think this case must be controlled by that. Having this view, it would be a needless waste of time and labor to go into a lengthy discussion of this and the other questions that have been so ably argued by counsel on both sides. Judgment of the county court reversed, and judgment for tho defendant for his cost.