Roberts v. Haskell

Caton, C. J. This was an action by a third indorsee against the second indorsee. It was offered to be proved for the defense that while the note was under the blank indorsement of the first indorser, it had passed through the hands of the plaintiff, who subsequently received it, and now holds and sues upon it as the third indorsee. This evidence we think was properly ruled out by the court. By receiving and passing the note while under a blank indorsement, and without putting his name to it, he assumed no responsibility in relation to it. The moment he parted with it he became as much a stranger to it as if he had never held it. Had the party to whom he passed it wished him to assume any responsibility in relation to it, he should have required his indorsement upon it. By taking it without such indorsement he waived any such guarantee, and agreed to take it upon the sole responsibility of the names already upon the note. After that, Haskell was as much at liberty again to receive it in the course of business as a subsequent indorsee, as if he had never held it. But we think the court erred in admitting in evidence the copy of the mortgage from the maker of the note to Mary R. Zanoni. The plaintiff in his testimony, which was given as the foundation for offering the copy in evidence, said, “ The original mortgage, of which this is a copy, is not in my possession or power to produce on this trial, and was never in my possession. I never saw it—never inquired for it—know nothing about it— it is all Greek to me.” According to the decision of Booth v. Cook, decided at this term, this evidence was insufficient. It is true, that here the mortgage was presented as rebutting evidence, while there the deed was primary and a necessary link in the plaintiff’s title; still, that could not dispense with all effort to produce the original. The plaintiff must, or should have known that if the maker of the note held the property described in the mortgage, unincumbered, it would, or at least might, defeat his action, and the necessity of producing this mortgage must have been apparent to him, and he should have made reasonable efforts to procure the original. The copy of the mortgage should have been excluded. The third and fourth instructions given for the plaintiff were as follows: “ The possession of property by Zanoni, claiming to hold it as the property of his mother, or any other person, is not evidence of ownership in Zanoni.” “ The plaintiff was not bound to levy his execution upon the property covered by liens, mortgages or incumbrances, by which he would have to pay off liens, or incumbrances, or involve himself in the expense of a trial of the right of property by an adverse claimant.” Both these instructions were wrong. The possession of property by the maker of the note was prima facie evidence of ownership in him, and the bare assertion by him, that the property belonged to his mother, is not sufficient to rebut this presumption. Suppose Haskell had recovered a judgment, and levied upon this property, the bare declarations of Zanoni that the property belonged to his mother, would not have been sufficient to sustain her claim to it, without corroborating .circumstances, nor was it sufficient in this case, to excuse Haskell from making further inquiry. The second instruction quoted was even more objectionable than the first. If that instruction was the law, then the maker of the note might have had property enough to pay an hundred such notes, and if it were incumbered by no matter how small an amount, the holder was excused from seeking to recover satisfaction out of it. Such is not the law. He was bound to use due diligence to collect it of the maker, or else take the responsibility of showing that, by the use of due diligence, he could not have collected it. If the maker had property worth more than any incumbrance upon it, it was the duty of the indorsee to levy upon, and, at least, offer it for sale ; and whenever others set up claims to property held by Zanoni, the holder" of the note was bound to contest those claims with the claimant, or take the responsibility of showing that they were valid. He was not at liberty to assume that every fictitious claim was valid. The following instruction, asked for the defendant, was refused: “ If the jury believe; from the evidence, that Zanoni was in the possession of, and had under his control, personal property during the summer of 1856, such possession is presumptive evidence that Zanoni owned said property, and unless the plaintiff has proved that some one else owned the property, the presumption would be that it really belonged to Zanoni.” For the reasons already given, we are of opinion that this should have been allowed. The defendant also asked this instruction, which was refused: “ If the jury believe, from the evidence, that during the summer of 1856, Zanoni had personal property, not exempt from execution, sufficient to have paid the debt, such state of facts raises a prima facie case that the note could have been collected of him.” We have no doubt this should have been given. If the facts were as supposed by the instruction, the presumption is, that, by the exercise of due diligence, the property might have been found and made available for the payment of the debt. It was the right of the party to have the case submitted to the jury, under proper instructions, and because this was not done, as well as for the reason that improper evidence was admitted, the judgment must be reversed and the cause remanded. Judgment reversed.