PIKE V. GALLOWAY. VOL. 17 "$237.50. FORT WASHITA, CHICKASAW NATION, February 5th, 1848. Eleven months after date, I promise to pay, to the order of George S. Ber-nie, to Messrs. Byrne & Burnside, Chartre street, New Orleans, two hundred and thirty-seven dollars and fifty cents, value received, without defalca-tion, as witness my hand and seal. [SEAL] R. L. GALLOWAY." - Endorsed: "Pay to Messrs Pike & Cummins, of Little Rock. GEORGE S. BERNIE." The declaration was in the F92 usual form, setting out the writing obligatory and the assignment, and making profert of each. At the return term, oyer was craved, and copies, as we have set them out, were accepted as a sufficient grant thereof. Whereupon, the defendant entered his plea of payment, and the plaintiffs joined issue; and, on motion, the court or-PIKE & CUMMINS dered that both parties have leave to V.
take depositions to be read condition-GALLOWAY. ally upon the trial, and continued the cause. It is error to permit a demurrir to the declara-At the next following term, no order tion to be filed, while an issue of fact of a plea in appearing to allow a withdrawal of the bar is standing in the record. The defendant executed his sealed note pay-able plea, the defendant filed a demurrer to "to the order of George S. Bernie, to Messrs. Byrne the declaration, assigning for cause : dc Burnside : " Bernie endorsed the note to the 1st. That plaintiff s failed to show a plaintiffs : Held, That the endorsement vested in legal title to the instrument sued on. the plaintiffs a legal right to sue upon the note. The legal title in in Byrne & Burnside. Writ of Error to the Circuit Court of Plaintiffs' assignor had no right to as-Pulaski County. sign. ON. 2d. The declaration shows no cause H WM. H. FEILD, Circuit of action. Judge. 3d. That the instrument given on (,-ummins, for the plaintifn. oyer, varies trom the one described in Curran & Gallagher, contra. the declaration. The plaintiffs joining in the demur-OP] *SCOTT, C. J. This was an ac-rer, upon argument, the court sus-tion of debt upon an instrument of tained it, and the •plaintiffs declining writing, a copy of which, together with to proceed farther, final judgment.was the endorsement under which the rendered for the defendant, and the plaintiffs made title, is as follows, to-plaintiffs brought error. wit: No question has been made by coun-
JAN. TERM, 1856. PIKE v. GALLOWAY. sel, as to the irregularity of allowing before the endorsement, to pay it to the demurrer to be filed after the plea the payee himself. By another rule, .of payment and issue thereon, and it is solely at the payee's election, with when that was still standing in the which the maker has no concern, record; and none as to the alleged va- whether he will retain the note him-riance. It is only the questions raised self, or pass it to another person. All on the other two assignments in the* these rules are to promote the negotia-demurrer, that are insisted upon in bility of the paper, and to facilitate the this court. To solve them, we must payee in passing it off like currency in necessarily interpret the contract be- the course of trade. And there are tween the parties. other rules, all tending the same way, From the face of the instrument, it like that which construes any equiva-seems manifest, that Bernie and Gallo- lent words in a note, as "assigns," to way were the original contracting par- mean "order," or "bearer," as the case ties. The considerai ion of their con- may be, in favor of negotiability. Sto-tract has not been questioned, and its ry on Peom. Notes, p. 47, sec. 44. Until sufficien -y must, therefore, be taken such a , note shall have been passed off, for granted. It is alleged, that they the right to receive the money, and con tracted Wi tili n t,11 is j urisd iction; the consequent right of action, upon and, therefore, they must be taken to its non-payment, remains with the have contracted with reference to our payee. Afterwards, both are in the iu-laws. The same is to be said of the dorsee, who stands in the shoes of the contract of assignmen t between Bern ie, payee. and Pike and Cummins. In the sealed note before us, on 93*] '13y these laws, in analogy to which we are to determine the ques-the law merchant, its rules respect- tions raised by the demuirer, when ing the rights and remedies of the the words "to Messrs. Byrne & Burn-makers, endorsers, and holders of bills,- side" are left out, we have a perfect in-notes, and writings obligatory, indis- strument, about which no question criminately, when for the payment of could arise. If, when considered as it money absolutely ; the manner of mak- is, and Bernie had indorsed it to Byrne ing the assignment and its effect, and & Burnside, the rights, either of the the mode of presentment and notice, maker, or of the indorsees, would, in have been, by the current of our de- no respect, *have been different, [*94 cisions, enforced. See the cases cited had the words "to Messrs. Byrne & to this effect, in Worthington v. Curd, Burnside" been left out ; because, in 15 Ark. Rep. 504. By one of these the general undertaking, "to pay to rules, when a note is made payable, "to the order of George S. Bernie," the the order of A," it is valid, and in con- maker had, in contemplation of law, templation of law, is payable to A, obliged himself to pay to whomsoever while he remains holder. Story on Bernie might indorse the note ; and Prom. Notes, p. 40. sec. 36, and authori- had, therefore, already embraced Byrne ties there cited. By another one of & Burnside. if they should have hap-these rules, he may, by his endorse- pened to become the indorsees. ment upon the note, thus making his The only matter of difficulty then, order, transfer his right to re'ceive the is, in determining whether or not the money to another person, to whom, in special undertaking to pay Byrne & that case, in contemplation of laW, the Burnside, upon the condition that the maker's promise is as emphatic to pay payee should indorse the note to them, the money to the endorsee, as it was should beheld to be au inhibition upon
VoL. 17 Bernie, to indorse it to any one else. for their use. In this view, Bernie's The negotiability of notes, as we endorsement was sufficient for the have seen, is to be favored. In con- plaintiffs to sustain their declaration templation of law the maker had no because, "in the case of a note payable, concern with this. He is supposed to or indorsed to a trustee for the use of-owe the money, else he would not have a third person, the trustee alone ia given his note for it ; and, therefore, it Competent to convey the legal title to is a matter of no consequence to him, the note, by a transfer or indorsement." to whom he pays it. And hence, no Story on Prom. Notes, chap. 4, p. 1302. presumption arises that he is injured, sec. 125, and authorities cited in note 3. whether the note remains in the hands The consequence is, that we think of the payee, or is passed oil by him. the plaintiffs showed, by their declara-Any construction, therefore, of the tion and the note and assignment ex-phraseology of a note in favor of its ne- bibted on oyes, not only a title to sue, gotiability, cannot be supposed to but ample cause of action. Hence, the injure the maker, and any construction court below, in our opinion, not only against it cannot be supposed to ben- erred in suffering the demurrer to be efit him. Until the contrary, then, filed, while an issue of fact, on a plea should expressly appear upon the face in bar, was standing in the record, but of the note, anything therein, which in sustaining the demurrer for the might relate to its negotiability, ought causes assigned. The judgment ren-to be taken to have been inserted for dered, will, therefore, be reversed, and the benefit of the payee. This is what the cause remanded, to be proceeded the law does, when it construes "as- with according to law, and not incon-signs" to be equivalent to "order." sistent with this opinion. With this understanding of the law, what figure do the words "to Byrne & Burnside" cut in the note before us? Just none at all, in our opinion, since it can have n0 effect to enhance the ne-gotiability of the note, and cannot be supposed to have been designed to restrict it, otherwise than by vague inference, having no foundation to rest upon in any thing upon the face of the note going to repel the presumption, that the payee alone was interested in its negotiable qualities. There is another point of view in which this note may be regarded, in which the legal result in this case will be the same. 95 5] t That is to say, it is probable, from its face, that the money, which the maker promised to pay to the order of Bernie, was for the use and benefit of Byrne & Burnside. In that case Bernie was, in contemplation of law, a trustee for that firm ; and, in that capacity contracted with the maker
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.