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Gfroehner v. McCarty, 2 Abb. N. C., 76.
The engagement is to pay to the bearer; and that the plaintiff is such is one of the material elements of his cause of action.
The fact must, therefore, be stated in his complaint, and its statement will be a sufficient allegation of his title; for it is the fact, and not evidence of the fact, which is required to be pleaded.
It is not only stated in the complaint in this action that the plaintiff is the holder and owner of the check, but also that it was transferred and delivered to him for a valuable considera9 tion, and that he became its owner and holder by virtue of that transfer and delivery. This cannot be true unless the drawer of the check transferred and delivered it directly to the plaintiff, or to some other person by or through whom it was transferred to the plaintiff; and this averment, if an allegation of a transfer and delivery by the drawer is necessary, is sufficient on demurrer, within the cases of People ex rel. Crane v. Ryder, 12 N. Y. (2 Kern.), 433, and Prindle v. Carruthers, 15 id., 425. All the judges concurred.
GFROEHNER v. MCCARTY.
City Court of Brooklyn; General Term, 1876.
[Reported in 2 Abb. N. C., 76.]
1. A complaint by payee against indorser sufficiently shows that defendant indorsed to give credit with the maker, if it alleges that, at the time of making the note, defendant indorsed it for the purpose of giving credit thereto, and that it was delivered so indorsed to the plaintiffs.
2. In an action against a married woman as indorser, an allegation that she had a separate estate, and that, by indorsing the note as alleged, she intended to and did charge her separate estate with the payment thereof, and that the consideration of the note went for the benefit of her separate estate, is sufficient.
Appeal by defendant from judgment overruling demurrer to complaint.
This was an action by Louis P. Gfroehner, and others, against Jacob and Jennie Shepard, to recover the amount of a promis
Gfroehner v. McCarty, 2 Abb. N. C., 76.
sory note, made by the defendant Jacob Shepard, payable to the 2 order of the plaintiffs, and indorsed by the defendant Jennie Shepard at the time the note was made.
The allegation of the complaint in respect to such indorsement is as follows: "That at the time of making the said note the defendant Jennie Shepard was a married woman, and the wife of the defendant Jacob Shepard, and was and is seized and possessed of a separate estate, and at the time of the making of said note, and for the purpose of giving credit thereto, said defendant Jennie Shepard indorsed said note, and in and by 3 said indorsement she intended to and did charge her separate estate with the payment thereof, and that the consideration of said note went for the benefit of her said separate estate."
The defendant Jennie Shepard demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and appealed from the order overruling demurrer and the judgment entered thereon.
REYNOLDS, J. The appellant is right in the position, that as a general rule the indorser of a note payable to the order of another is presumed to have intended to become liable as second indorser, and is not liable upon the note to the payee, who is supposed to be the first indorser. But this presumption may be rebutted by showing that the indorsement was made to give the maker credit with the payee; in which case the party so making it became liable as first indorser (Coulter v. Richmond, 59 N. Y., 478).
That is what is substantially alleged in the complaint in this action. It is stated that the defendant Jennie Shepard, at the time of the making of the note, indorsed the same for the pur- 5 pose of giving credit thereto, and that said note was delivered so indorsed to the plaintiffs. In such connection the allegation that the indorsement was for the purpose of giving credit to the note must mean that it was to give the maker credit with the payee; that is, she became security for the maker. The case is thus brought within a line of decisions, one of which is cited above.
The further allegations of the complaint show the con
Draper v. The Chase Mfg. Co., 2 Abb. N. C., 79.
6 sideration for the contract thus made by said defendant, and that the contract was made in such form as to bind her, a married woman. It is alleged that the consideration of the note was for the benefit of her estate, and that by the endorsement she charged her separate estate with the payment of the note. These facts, if proved, establish her liability (see Yale v. Dederer, 18 N. Y., 265; 22 id., 450; Owen v. Cawley, 36 id., 600; Ballin v. Dillaye, 37 id., 35).
McCUE, J., concurred.
DRAPER v. THE CHASE MANUFACTURING
N. Y. Supreme Court, First Department; Special Term, 1877. [Reported in 2 Abb. N. C., 79.]
Where, in an action by the payee of a promissory note against an indorser, it was alleged in the complaint that after the making of the note it was indorsed by the defendant, and thereupon transferred for value to the plaintiff; Held, on demurrer to the complaint, that this was not a sufficient averment to admit proof to rebut the presumption that the payee was the first indorser, and therefore not liable to him. There should have been an allegation that the plaintiff parted with value upon credit of the indorsement in order to hold the defendant liable. *
Action on a promissory note against the maker and an alleged indorser.
The complaint, after alleging the incorporation of the defendants, alleged that on the 10th day of August, 1875, at the city of New York, the defendant Frank W. Allen made a certain promissory note in writing, bearing date on that day, and thereby for value received promised to pay the plaintiff or order the sum of two hundred and fifty dollars; and the defendant, the Chase Manufacturing Company, afterwards indorsed the said promissory note, and the same was thereupon for value received transferred to said plaintiff, who was the lawful owner and holder thereof.
* Compare preceding case.
Draper v. The Chase Mfg. Co., 2 Abb. N. C., 79.
The complaint contained proper allegations of protest and 3 notice of non-payment to charge defendant as indorser.
The defendant company demurred to this complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and claimed that, the plaintiff being the payee of the note, the complaint contained no sufficient allegation to admit of proof to overcome the presumption that the Chase Manufacturing Company intended by their indorsement only to become liable as second indorser, and so not liable to the payee.
VAN BRUNT, J. [after stating the facts]: It is the well settled 4 rule in this state that, in order to overcome such presumption, the payee must show that the note was thus indorsed to give credit to the note with the payee, and that the payee has parted with value upon the credit of such indorsement (Herrick v. Carman, 12 Johns., 160; Nelson v. Dubois, 13 id., 175; Campbell v. Butler, 14 id., 349; Hall v. Newcomb, 7 Hill, 416; Moore v. Cross, 19 N. Y., 227; Bacon v. Burnham, 37 id., 614; Phelps v. Vischer, 50 id., 69; Coulter v. Richmond, 59 id., 478).
It is as well settled that the complaint must allege every fact which it is necessary the plaintiff should prove in order to recover (Kelsey v. Western, 2 N. Y., 506; Conkling v. Gandall, 1 Abb. Ct. App. Dec., 423).
The allegation in the complaint that the Chase Manufacturing Company afterwards indorsed the said promissory note, and that the same was thereupon for value received transferred to the plaintiff, it seems to me, is wholly insufficient to admit of proof to rebut the presumption above referred to. There is no allegation that the company indorsed the note to give credit to it with the payee, nor that the payee parted with anything upon the 6 credit of such indorsement. The allegations contained in the complaint that the note was, after indorsement for value received, transferred to the plaintiff, contained no allegation that that value was parted with upon credit of the indorsement, which allegation is essential to a recovery.
Note on Actions on Paper Payable on Demand.
NOTE ON ACTIONS ON PAPER
A bill of exchange, or note, payable on demand, is payable immediately, and no demand is necessary before suing the maker. Tied. on Com. Paper, § 310, and cas. cit; Wheeler v. Warner, 47 N. Y., 519; (a provision that the note bears interest does not change the rule.)
This principle of dispensing with a demand before suit, is not confined to bills and notes, but applies to all express agreements to pay money, if absolute, even though at a specified time and place. Tied. on Com. Paper, § 310, and cas. cit. Locklin v. Moore, 57 N. Y., 360, aff'g 5 Lans., 307; (agreement to pay, for goods sold, at defendant's store on a specified day.)
The only effect of qualifying a promise to pay by the mere specifying 2 of demand at a fixed time and place, is, that if the debtor is ready with the money at that time and place, and no demand is made, he is exonerated from paying costs and interest for subsequent time, provided he keeps ready, pays the money into court when sued, and pleads these facts in his answer. Tied. on Com. Paper, § 310, and cas. cited; Locklin v. Moore, 57 N. Y., 360.
Readiness at the time and place, and offer to pay at the trial is not enough. Locklin v. Moore (above).
A note payable on demand, or in any terms which make it payable, absolutely at the will of the holder, is immediately due, for the purpose of suing the maker, and therefore for the setting the statute of limitations running in favor of the maker. Wheeler v. Warner, 47 N. Y., 519; Howland v. Edmonds, 24 N. Y., 307; (note by a member of a mutual insurance company, expressed to be payable "in such portions and at such time or times as the directors * require." Such a note is intended as a cash security).
Otherwise, of an assessment or call on a subscription for stock. Glenn v. Marbury, 145 U. S., 499.
Compare Code Civ. Pro., § 410, statute (where right exists) running from the time the right to make demand is complete.
On a note payable on demand with interest, demand of maker is neces4 sary in order to charge an indorser. Tied. on Com. Paper, § 310, and cas. cit.; Merritt v. Todd, 23 N. Y., 28.
For this purpose the demand is too late, if it be delayed until the statute of limitations has run in favor of the maker. After the statute has run, demand on the maker cannot avail to charge the indorser. Shutts v. Fingar, 100 N. Y., 539.
If a note is payable at a particular place, actual demand there is necessary in order to charge the indorser. Tied. on Com. Paper, § 310, and cas. cit. Demand by letter is not enough. Parker v. Stroud, 98 N. Y., 379.