Hayden v. Goodnow

Foster, J. The plaintiff, as indorsee of a bill of exchange drawn on the defendant, seeks to recover its amount from him as the acceptor. Under the plea of the general issue, the defendant gave notice that he should claim and prove that the draft was accepted without funds or consideration, as an accommodation draft, upon the promise of the payee that funds should be provided to meet it, and that none were provided ; of all which the plaintiff had notice and knowledge; also, that the plaintiff paid no valuable consideration for said draft. On the trial the defendant further claimed, that, as the plaintiff had erased all the indorsements on the draft before or at the time of the-commencement of his suit, giving no explanation of the same except such as appears of record, the plaintiff could not recover. The issue was closed to the court, and judgment rendered for the plaintiff. Two questions appear on this motion for a new trial; one, as to whether the plaintiff was chargeable with knowledge of the want of consideration, and of the agreement of the payee to pay the draft, or to furnish funds to pay it, it being found that it was an accommodation draft, and that such an agreement was made; the other, as to the legal effect of the erasure of the indorsements. The finding shows that the plaintiff received the draft before maturity, in the ordinary course of business, in payment and extinguishment of a pre-existing' debt, due from a company of which the drawer was president, and the payee was secretary; that the plaintiff was a bond fide holder of the draft, without notice or knowledge that the acceptance by the defendant was without consideration, and for the accommodation of other parties; and did not know that it was accepted in the faith of assurances from any party that funds would be provided to meet it at maturity. It is therefore difficult to see what legal question remains about which any possible doubt exists as to the general right of the plaintiff to hold the defendant liable on this acceptance. That question has, at last, very properly been waived by the defendant’s counsel, [169] and tbe remaining one, as to the effect of the erasure of the indorsements only, has been argued before us. . When the plaintiff received the draft it was properly in•dorsed to pass the title to him by the party to whose order it was made payable, and it so continued till after its maturity. At the time of the commencement of the suit, and at the time of trial, the plaintiff was the lond fide owner of the draft, and there was no evidence offered that he had ever parted with the ownership from the time he first received it. That the plaintiff must have had the legal title to this bill at the time the suit was commenced; that it must have continued in him up to and at the time of the trial, in order to enable him to maintain this action, is undoubted law; indeed it cannot be considered an open question in this state. Lee v. Jilson, 9 Conn., 94; Curtis v. Bemis, 26 id., 1; Vila v. Weston, 33 id., 42. As to the effect of the erasure of the indorsements, Williams, C. J., in giving the opinion of the court in Bailey v. Taylor, 11 Conn., 541, says, “ The result to which we have arrived is, that where there is an erasure or alteration in an instrument under which a party derives his title, and the adverse party claims that such erasure or alteration was improperly made, the jury are, from all the circumstances before them, to determine whether the instrument is thereby rendered invalid.” Now the judgment of the court below, which was for the plaintiff, must have the same effect here as the verdict of a jury. The effect of this erasure having thus been passed upon as a matter of fact, and the ownership of this draft being found to. be still in the plaintiff, we cannot, as matter of law, reverse that decision, and say that the plaintiff’s title was gone, and had vested in another. The burden .of proof- of accounting for an erasure or alteration is not necessarily on the party producing the instrument. It has been so held in some courts, but the law is otherwise in this state. Bailey v. Taylor, ut supra. Each case must depend on its own circumstances, and the triers must be satisfied that the erasure or alteration was fairly made, so as not to affect the validity of the instrument; [170] and in a case of this sort that it was without any purpose or intent to transfer or change the title or ownership of the instrument. . A new trial is denied. In this opinion the other judges concurred.