Calhoun v. Albin

Currier, Judge, delivered the opinion of the court. This suit is brought against the firm of P. Bfiss & Co., to recover the amount claimed to be due upon the firm’s negotiable promissory note to the plaintiffs. The plaintiffs sue as payees, although it appears that the note is in fact held by them as the assignees of a business firm known as the Union Printing Company. The note was drawn by the firm of P. Bliss & Co. to the order of the plaintiffs, and was by the plaintiffs, at its maturity, indorsed in full and delivered to- J. W. Strong for the use and benefit of the Printing Company. [306] The plaintiffs indorsed it without recourse, and received as a consideration for the transfer, the Printing Company’s note for a like amount. Subsequently to this, and when the note was past due and uncurrent, the plaintiffs, at the instance of the Printing Company, took the note back, and now profess to hold it as collateral to the note of said Printing Company, although they admit that the latter note is good without any collateral support. ■ Sherwood, one of the members of said Printing Company firm, is also a member of, the firm of P. Bliss & Co., and is joined as a defendant in this suit. These facts appear from the pleadings and evidence, and are not in dispute. Upon the facts as thus recited, can the plaintiffs maintain this suit ? It is obvious that the plaintiffs transferred all their right, title and interest in the note sued on, when they indorsed it to the Printing Company, and that, as their indorsement was in full and without recourse, they had no further concern with the note as original parties to it. They were as clear of it as though the: note had been payable to a stranger and had never passed through their hands. Therefore, when the note came back to them they received it as would any other transferee, and not because $£ their prior relations to the note, either as payees or indorsers. Nor are their rights enlarged by the form of the suit, by suing as payees, and not as the Printing Company’s indorsees or transferees. By the re-acquisition of the note they succeeded to the rights and remedies of the Printing Company and to nothing' more. But the Printing Company had no remedy upon the note in an action at law, but only in equity, where the equities of the parties could be considered and adjusted. But this is an action at law, and the plaintiffs are cut off from this mode of redress, since their assignors had no such remedy. They stand in the attitude of assignees of non-negotiable paper. Any action they might bring upon-the note was subject to the same objections and defenses that might be urged against an action in the name and favor of their assignors. The assignment created no new right of action. This point was definitely settled in Hill v. McPherson, 15 Mo. 204. [307] Moreover, it is quite apparent from tbe record that tbe present suit is in fact prosecuted in tbe interest of tbe Printing Company, and that it is so prosecuted in tbe name of tbe plaintiffs as a mode of avoiding defenses that might be made against an action brought in tbe name of said company. Such arrangements are not favored by tbe courts. Tbe Printing Company was debarred from maintaining an action at law upon tbe note against P. Bliss & Co., because of tbe composition of tbe two firms. Tbe • defendant Sherwood being a member of both, could not join in an action at. law against himself. It has already been shown that tbe plaintiffs are subject to tbe same disabilities as were their assignors. Tbe form of tbe assignment is unimportant. The plaintiffs were tbe original payees, and the endeavor was to revest them with title by erasing tbe indorsements upon tbe back of tbe note and a delivery of it back to them. That was at best but a mode of effecting an assignment, and tbe plaintiffs took as assignees of tbe Printing Company. Since tbe plaintiffs cannot recover upon tbe facts shown by tbe record, it is unnecessary to notice tbe instructions.. Tbe plaintiffs took a nonsuit, and as a reinstatement of tbe case would be of no avail to them, tbe judgment will be affirmed; Judge Wagner concurs. Judge Bliss not sitting.