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words making it a joint or several obligation, its delivery to the person for whose accommodation it was made, without any express stipulation against further signature, is held to have authorized such person to procure it to be signed by other parties as joint makers with the first. The dollar sign, or the word dollars, may be supplied.
VALID AND EFFECTUAL.--Where a husband being entrusted with a note and mortgage with the description of the property left blank, filled up the mortgage, pursuant to the understanding with his wife, with a description of their homestead, the note and mortgage are valid in the hands of a holder in due course, although the husband procured the wife's signature upon the representation that other property only was to be put in.
Incomplete instruments completed without authority.-Where an incomplete instrument has not been delivered it will not, if completed and negotiated, without authority, be a valid contract in the hands of any holder, as against any person whose signature was placed thereon before negotiation.
NOTE. --One who signs an instrument for the payment of money only, (whether negotiable or not), leaving the amount blank, and intrusts it to another with authority to fill the blank with an agreed sum, will, as to third persons having no knowledge of the limitations of such authority, be bound by the act of the person to whom the instrument was intrusted although he fills the blank with a larger sum than that agreed. So held, where A as accommodation maker with B, signed a note upon the upper left hand corner of which were the figures $45, but the amount of which was left blank with the understanding that B should fill the blank so as to make it a note for forty five dollars, and before delivering the note to the payee and without the knowledge of the latter, B filled the blank with the words “four hundred and fifty dollars” and annexed a cipher to the figures $45. The figures in the corner of the note were no part thereof, and an unauthorized change in them did not vitiate the note.
Contracts on negotiable paper, when incomplete.-Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties, and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting or indorsing, as the case may be; and in such case the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all the parties prior to him so as to make them liable to
him is conclusively presumed. And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved.
NOTE.-T and J, with others, were liable for the amount of a certain judgment, and W, who was not so liable, signed a note with them, and left it with T to be negotiated by him to raise money to pay it; but T paid the judgment with his own means, and did not attempt to negotiate the note. In an action by T against W to recover against him, a proportionate share of the note, on account of such payment, Held, that the note, had not been delivered, and had no legal existence as such, and there could be no recovery.
Defendants made a note to C or bearer. The evidence tended to show its deposit by defendants with the supervisors of a town, to be by them delivered to C, on condition that on a certain day C should complete a road. C did not perform his contract; but, after the expiration of the time therefor, and after the note matured the road was built by another person, and accepted by the supervisors, and the note delivered to him without the consent of defendants. The defendants were held not liable.
DELIVERY IN ESCREW.--To constitute a good delivery of drafts in escrow the person making such delivery must part with the possession and divest himself of all power and dominion over them. Thus, if accepted drafts are delivered by the vendee of goods to a depository who is to hold them until notified of the acceptance of the goods and directed by said vendee to turn the drafts over to the vendor there is no escrow.
Construction of ambiguities.- Where the language of the instrument is ambiguous, or there are omissions therein, the following rules of construction apply:
1. Where the sum payable is expressed in words and also in figures and there is a discrepancy between the two, the sum denoted by the words is the sum payable; but if the words are ambiguous or uncertain, references may be had to the figures to fix the amount;
2. Where the instrument provides for the payment of interest, without specifying the date from which interest is to run, the interest runs from the date of the instrument, and if the instrument is undated, from the issue thereof;
3. Where the instrument is not dated, it will be considered to be dated as of the time it was issued;
4. Where there is a conflict between the written and printed provisions of the instrument the written provisions prevail.
5. Where the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may treat it as either at his election.
6. Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser;
7. Where an instrument containing the words "'I promise to pay” is signed by two or more persons, they are deemed to be jointly and severally liable thereon;
8. Where several writings are executed at or about the same time, as parts of the same transaction, intended to accomplish the same object, they may be construed as one and the same instrument as to all parties having notice thereof.
NOTE.--A note drawn by filling out a printed blank provided for the payment of interest after maturity; also that the failure to pay interest as agreed should make the note wholly due and payable. The condition of the mortgage given to secure the note was the payment of the amount “with ten per cent, per annum annually” etc. Construing the instruments together in the light of the parol testimony, it is held that to effectuate the intention of the parties, the printed words “after maturity'' should be erased from the note.
Trade or assumed names.- No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to the same extent as if he had signed his own name.
NOTE. -SIGNATURE. – Matter written partly on the same line as the last word of a printed form and before the signature, and partly on a lower line, is part of the note. Subscription is not necessary.
Signature by agent. The signature of any party may be made by a duly authorized agent. No particular form of appointment is necessary for this purpose; and the authority of the agent may be established as in other cases of agency.
Agent not liable, when.-Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.
NOTE. - A note sued on was as follows: "April 1st, 1858. One year after date, for value received, we, as trustees of the Summerfield M. E. Church, for and in behalf of the said church, promise to pay Diana Taylor the sum of fifteen hundred dollars, with interst, etc. Geo. F. Austin, Edward Emery, M. Steever, W. A. Chapman, R. P. Elmpre, Trustees Summerfield M. E. Church.” Held that whatever might be the conclu
sion as to the personal liability of the trustees in case they had bound the church, if they did not bind the church they bound themselves. The evidence did not show any vote by the board of trustees, at an authorized meeting, to execute said note or to borrow the money for which it was given, but the negotiation appeared to have been continued principally by one of the trustees, and the loan effected without any such previous action, and two of the trustees signed the note, and the lender's agent then took it to the other trustees, and procured their signatures. Held, that the note was not binding upon the church. A note reading “we promise to pay" etc., signed “San Pedro Mining and Milling Company, F. Kraus, President," is the note of the company alone.
Signature by “procuration”.-A signature by "procuration” operates as a notice that the agent has but a limited authority to sign, and the principal is bound only in case the agent in so signing acted within the actual limits of his authority.
Indorsement by corporation or infant.-The indorsement or assignment of the instrument by a corporation or by an infant passes the property therein, notwithstanding that from want of capacity the corporotion or infant may incur no liability thereon.
Forgery.-Where a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party, against whom it is sought to enforce such right, is precluded from setting up the forgery or want of authority.
Presumptions.-Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.
Value, defined.-Value is any consideration sufficient to support a simple contract. An antecedent or pre-existing debt, discharged, extinguished or extended, constitutes value; and is deemed such whether the instrument is payable on demand or at a future time. But the indorsement or delivery of negotiable paper as collateral security for a pre-existing debt, without other consideration, and not in pursuance of an agreement at the time of delivery, by the maker, does not constitute value.
NOTE. - ANTECEDENT DEBT. - Taking an indorsement in discharge of such a debt without notice of equities makes the indorsee a bona fide holder. Where the payee indorses a note as collateral security for an antecedent debt which still remains unsatisfied, no new consideration intervening, the holder is not one in due course.
CONSIDERATION. - Where an agent gives his note in discharge of or forbearance of his principals' debt, this is a consideration. A contract void by the statute of frauds is not a consideration. Where a note was for an amount due the payee from the maker on a certain contract, this was a sufficient consideration, although the payee may have owed the maker at the time more than the face of the note, on other contracts. One who takes the note of his debtor, for the amount of a debt then past due, especially if such note is signed or indorsed by a third person and payable at a future day, will be presumed to extend the time for the payment of the debt until the day fixed in the note; and such extension is a valuable consideration for the note and places the creditor in the position of an innocent holder thereof for value.
Value presumed.-Where value has at any time been given for the instrument, the holder is deemed a holder for value in respect to all parties who became such prior to that time.
NOTE--VALUE. ---The purchase of a $300 note of a person known by the indorsee to be in fair credit, for $5, is not a purchase for value. Taking a note, bond and mortgage at 73 per cent. of their par value held a purchase bona fide.
Where a claim to a future contingent interest in land was made in good faith, based upon the terms of a will, a release thereof was a sufficient consideration for a promissory note given therefor by one who, while denying such claim, chose to compromise it; and in the absence of fraud or undue advantage it is immaterial whether such claim was in fact well founded or not.
When holder has lien.- Where the holder has a lien on the instruments, arising either from contract or by implication of law, he is deemed a holder for value to the extent of his lien.
NOTE.- A holder as collateral for value is one in due course.
Where a debt is created without any stipulation for further security, and the debtor afterward, without any obligation to do so, voluntarily transfers a negotiable instrument to secure the pre-existing debt and both parties are in statu quo in respect to such debt, no new consideration, stipulation for delay or credit being given, or right parted with by the creditor, he is not a holder of the collateral for value in the usual course of trade, so as to be protected against any equities existing against it at the time of the transfer.
The mere transfer of such collateral to the creditor raises no presumption of a stipulatation for further time on the pre-existing debt, which will operate to defeat the equities of the maker or indorser existing at the time of such transfer.