Dickinson v. Carroll

Bisk, J. The allegations of the complaint, admitted by the demurrer, may he epitomized as follows: Plaintiff voluntarily, and with full knowledge of the facts, executed and delivered to defendant his negotiable promissory note, without consideration; and the latter, with such knowledge, accepted the same. Thereafter and before its maturity defendant transferred the same in due course and for value to an in [276] nocent purchaser, to whom plaintiff was obliged to and did pay the sum due thereon. Do such facts create any liability on defendant’s part, under any theory of law, to reimburse plaintiff for the money which he was thus required to pay? The question thus presented is somewhat novel. Neither party has cited any authority directly in point, and we have.been unable to find that the identical question has ever been before the courts for decision. As we view the matter it is not a question involving a voluntary payment, as appellant’s counsel seem to think, although somewhat analogous thereto. While the note was voluntarily given, it paid nothing, as there was concededly nothing to pay. It merely amounted to a voluntary promise on plaintiff’s part to pay to defendant or order, a sum of money at a future date. Such note was not voluntarily paid by plaintiff. He was compelled to pay it to such bona fide purchaser because of a legal duty so to do, arising from the negotiable instrument law. On principle, we can discover no sound reason why defendant is under any obligation to plaintiff to reimburse him for the sum thus paid on such note. If, instead of voluntarily giving to defendant such negotiable note, plaintiff had given to defendant the face value thereof in cash, under the like circumstances, none would contend that defendant would owe any legal duty to repay such sum to plaintiff. The act of defendant in transferring such note cannot be deemed an actionable wrong, as by the giving of the note negotiable in form it must be held that plaintiff contemplated that the same might be negotiated, and thereby consented thereto. As was said by the court of appeals of New York: “The plaintiff cannot complain because the defendants negotiated the note, so as to shut out the defense, which he would have had to it in the hands of the defendants. The negotiation of the note was contemplated when it was given as the words of negotiability show. It is possible that the plaintiff, while the note was held by the defendants, might have maintained an action to restrain the transfer, and to compel its cancelation. Jackman v. Mitchell, 13 Ves. Jr. 581, 9 Revised Rep. 229, 12 Eng. Rul. Cas. 321. But it is unnecessary to determine that question in this case. The plaintiff having paid the note, although under the coercion resulting from the transfer, the law leaves him where the transaction has left him.” Solinger v. Earle, 82 N. Y. 393. If, prior to the negotiation of such note by defendant, plaintiff had [277] elected to repudiate any liability thereunder and had communicated his election so to do to the defendant, demanding a return and cancelation thereof, a different question would arise. Under such a state of facts it might properly be said that the defendant’s negotiation of the note would constitute an actionable wrong, entitling plaintiff to recover. But under the facts alleged in the complaint and admitted by the demurrer in the ease at bar, we fail to see how defendant owes to plaintiff either a legal or moral duty in the premises. Neither in good morals nor in good conscience is defendant called upon to reimburse plaintiff for the loss suffered by him solely as a result of his own folly. On the argument in this court respondent’s counsel requested that permission to amend the complaint be given in the event a decision is reached adverse to his contention. Such application must, of course, be addressed to the district court after the remittitur has been filed in that court. Permission to make such application is hereby granted. Por the above reasons the order appealed from is reversed and the cause remanded for further proceedings according to law. All concur, except Morgan, Oh. J., not participating. Mr. Justice Goss, being disqualified, did not sit, Winchester, J., of the sixth judicial district, acting in his place by request.