Elliott v. Chesnut

Stewaiít, J., delivered the opinion of the Court. The note upon which the suit below was instituted by the appellees, the holders of the note, against the appellant, the maker, was in blank as to the name of the payee; and upon the call of the case at the April term, 1863, the appellant took his first exception to the action of the Court, in permitting the appellees to fill up the blank with the names of Hall & Anderson as the payees, who were the parties that had endorsed the note to them. At the trial, November term, 1865, the appellant took his second exception to the ruling of the Court, in allowing the note, so altered at bar, to stand, and to be offered as evidence to the jury. Both exceptions may be considered and disposed of together. It is well settled, that endorsements in blank upon a promissory note, can be filled up at any time before verdict, to carry out the intention of the parties, upon the implied authority of the endorser to that effect, according to the commercial law regulating the transfer of such papers. A bill payable to bearer, or a bill payable to order, and endorsed in blank, will pass by delivery, and bare possession is prima faeie evidence of title, and for that reason possession of such a bill will entitle the holder to sue. The Act of 1825, chapter 35, (embodied in the Code, Art. 14, sec. 8,) provides that “no judgment shall be set aside because of the endorsement being in blank, and in effect, gives to a plaintiff all the advantage from a blank endorsemant as one in full, so far as his right of action is affected. Any holder, therefore, with a blank endorsement, may now sue in his own name.” Whiteford vs. Burckmyer & Adams, 1 Gill, 146, 147. “If the note is payable to order, the title will pass, by the endorsement of the payee to the person named in the endorsement ; if they are endorsed in blank, then the title passes by mere delivery to the holder, in the same manner as if the endorsement were to the bearer.” Story on Prom. Notes, see. 43. [566] The holder of the note has also a very large authority to fill up the blanks in the body of the note. It is not necessary that the payee should be expressly named, if it can be fairly implied to whom the promise is made. “The name of a person signed to a blank paper, for the purpose of having a promissory note written over it, will bind the party, when the note is written by a person properly authorized, in the same manner and to the same extent, and from the same time, as if it had originally been filled up, before the signature was made.” Story on Prom. Notes, seo. 10. “The blank note, or paper signed by the maker, may be afterwards filled up by any authorized person, according to the intent for which it is signed or endorsed, and in the possession of a bona fide holder, it will be held valid.” Story on Prom. Notes, seo. 37. If the note is signed by the maker, leaving a blank for the name of the payee, the holder, by virtue of the implied authority, can fill the blank with his own name; this is conceded on all sides. We see no reason, where there is no mala fides, why the holder may not fill the blank with the name of the original payee, under the implied authority from the endorser and maker, in order to perfect the instrument according to the intent of the parties. Under the commercial law, the instrument is what the maker designed it should be, in the hands of the bona fide holder; and when left in blank in the body, or the ■ endorsement, may be filled up by the holder, according to its true intent and purpose. The note in the body, or endorsement thereon, being left blank, -gives per se authority to the bona fide holder to supply the omission. In the absence of fraud, the holder of the blank note is unquestionably authorized to perfect the instrument, according to the true design- and intent of the maker. When the holders, the appellees, in this instance proposed to fill up the blank in the note with the names of Hall & Anderson, the Court had the right to permit them to fill up [567] the blank accordingly, — which occasioned the appellant’s first exception; and in the further progress of the case, to allow the note so filled up to stand and be offered as evidence to the jury, (of which the appellant complained in his second exception.) (Decided 2d June, 1869.) Under these circumstances, the appellant was more fully informed of the character of the transaction, as represented by the holders of the note, and if he had any legal or meritorious defence to make to the note, according to its purport, as filled up, or could show that the appellees, as the holders, had, in truth, not the right to sue for and recover the same, he was deprived of none of his rights by the action of the Court, but had the opportunity, notwithstanding, to fully contest the suit. Judgment affirmed.