as is often the case in a duebill.92 It is necessary, however, to distinguish between bills and notes in which no payee is named, and an instrument where, although no payee is named, there is a blank space left for the name of the payee.93 94 Moreover, the payee must be ascertainable, and hence a note payable to a named person "et al" is not negotiable. A fortiori, an instrument which neither names a payee nor contains words of any kind indicating to whom payment is to be made is not a "negotiable" instrument, especially under the Negotiable Instruments Law requiring an instrument to be payable to order or to bearer in order to be negotiable." where a private person would be held personally liable as an agen', although in some cases the court seems to have applied the general rules without regard to the fact that a public officer was involved.se [286] L. Designation of Payee 87-1. Necessity for. The Negotiable Instruments Law expressly provides that, where the instrument is payable to order, the payee must be named or otherwise indicated therein with reasonable certainty,88 88 and the same rule is contained in the Bills of Exchange Act of England and Canada.89 In other words, if the instrument is not payable to bearer and there is no blank left for the name of the payee which the holder may fill,90 the payee must be named or indicated. This is merely a restatement of the existing rule, independent of statute, under which a bill or a note is not negotiable if no payee is designated,91 work done on Hazel Valley school- 12 LRA 483; Smith v. Marland, 59 house" and signed by two persons with the word "Committee" following their names was held to be the individual note of the signers. Anderson v. Pearce, 36 Ark: 293, 38 AmR 39. And see Bingham v. Kimball, 17 Ind. 396. [b] Tax collector-Where a sherIff, being a collector of taxes, gave a check signed "John A. Perkins, T. C.," the letters "T. C.," evidently meaning tax collector, were notice sufficient to place the payee on his guard in receiving the check and to show that the check was to be paid from state funds. State v. Jahraus, 117 La. 286, 41 S 575, 116 AmSR 208. 86. See cases supra notes 84, 85. 87. Cross references: Change of payee as material alteration see Alteration of Instruments § 75. Necessity for making instrument payable to "order" or "bearer," in order to be negotiable see supra § 260. Note given by a husband to wife or vice versa, as valid see Husband and Wife [21 Cyc 1280]. Presumption as to ownership of negotiable paper payable to married woman see Husband and Wife [21 Cyc 14071. 88. See statutory provisions. 89. Bank of England v. Vagliano, [1891] A. C. 107, 121, 3 ERC 695 [rev 23 Q. B. D. 243]. "To return to the construction" of the language of the two subsections for I think both should be read together-it seems to me that what the legislature was enacting was in substance this: That where a bill was not payable to bearer, the person to whom payment was intended to be made was to be named or otherwise indicated upon the face of the instrument with reasonable certainty; but where there was no real payee, the bill might be treated as payable to bearer.' Bank of England v. Vagtiano, supra. 90. See infra § 287. 91. Ala.-Blackman v. Lehman, 63 Ala. 547, 35 AmR 57; Prewitt v. Chapman, 6 Ala. 86 (holding that an instrument purporting to be a bill of exchange, which does not direct to whom payment shall be made, may be the foundation of a suit by the person from whom the consideration moved but has not the effect of a bill payable to bearer, and that a third person cannot maintain an action thereon). Ga.-Moody v. Threlkeld, 13 Ga. 55. Ill. Adams v. King, 16 Ill. 169, 61 AmD 64; Mayo v. Chenoweth, 1 Ill. 200; Smith V. Bridges, 1 Ill. 18: Workman v. Workman, 168 Ill. A. 627; Weeger v. Mueller, 102 Ill. A. 258. Ind. Rich v. Starbuck, 51 Ind. 87; Greenhow v. Boyle, 7 Blackf. 56. Iowa. Gordon V. Anderson, 83 Iowa 224, 49 NW 86, 32 AmSR 302, 95 [§ 287] 2. Execution in Blank. The payee's name may be left blank, which makes the instrument payable in effect to bearer;96 and in such case lowa 645, 13 NW 852. Mass.-Brown v. Gilman, 13 Mass. 158. Miss.-Tittle v. Thomas, 30 Miss. 122, 64 AmD 154; Matthews v. Redwine, 23 Miss. 233. Trust Co. v. Harger, 177 Ill. A. 106 [aff 258 I11. 615, 102 NE 209]. [c] Sufficient designation.-(1) A writing, "Due James Foster one hundred and forty-one dollars 10%, which I promise to pay Thomas Carson, Sheriff to satisfy an attach Mich. Gordon V. Lansing State Say. Bank, 133 Mich. 143, 94 NW 741. Minn. McIntosh v. Lytle, 26 Minn. 336, 3 NW 983, 37 AmR 410 (bill payment," etc., signed "Joseph Bates," able "to the order of" and no blank to Thomas Carson, is a promissory left). note. Bowie v. Foster, Minor (Ala.) 264. (2) And an instrument, "For value received, I promise to pay to the order of Shubael D. Childs, two hundred dollars, with interest, payable to F. Vose, or bearer, on the first day of July next, at Messrs. Forrest Brothers & Co.'s banking house, Chicago City, Illinois," with the indorsement of "Shubael D. Childs, Jr." is a negotiable promissory note. Childs v. Davidson, 38 Ill. 437, 438. Mo.-Crawford v. Johnson, 87 Mo. A. 478; Biskup v. Oberle, 6 Mo. A. 583. N. J. Strickland v. National Salt Co., 77 N. J. Eq. 328, 76 A 1048 [aff 79 N. J. Eq. 182, 223, 81 A 828, 832] ("registered holder"). N. Y.-Evertson v. Newport Nat. Bank, 66 N. Y. 14, 23 AmR 9 [rev 4 Hun 692]; Hoyt v. Lynch, 4 N. Y. Super. 328 (holding that an order indorsed on a bill of goods to pay it "and charge the same to our account," although a bill of exchange, is not negotiable for want of a payee's name); Douglass v. Wilkeson, 6 Wend. 637. Okl.-Randolph v. Hudson, 12 Okl. 516, 74 P 946. Pa. Merchants', etc., Bank v. Pizor, 24 Pa. Co. 273. Tenn.-Seay v. State Bank, 3 Sneed 558, 67 AmD 579. Wis.-Smith v. Willing, 123 Wis. 377, 101 NW 692, 68 LRA 940. Eng.-Gibson v. Minet, 2 Bro. P. C. 48, 1 Reprint 784, 1 H. Bl. 569, 126 Reprint 326, 3 T. R. 481, 100 Reprint 689; Yates v. Nash, 8 C. B. N. S. 581, 98 ECL 581, 141 Reprint 1294; Storm v. Stirling, 3 E. & B. 832, 77 ECL 832, 118 Reprint 1353 [aff E. & B. 333, 88 ECL 333, 119 Reprint 889]; Rex v. Randall, R. & R. 145. N. B.-Mutual Safety Ins. Co. v. Porter, 7 N. B. 230. [a] Illustration.-A note on a printed form, after the words "pay to the order of," contained a single blank line terminating in the word "dollars," and the words "twentyfive hundred" were written at the extreme left of this line, so as to leave no space in front of them for the name of the payee. It was held that its silence as to the name of the payee could not be supplied by a provision for confessing judgment in favor of the holder, and the note be thereby transformed into a negotiable instrument, payable by its terms to bearer, as the note showed on its face that the payee's name was omitted by mistake, and it was therefore nonnegotiable because of its uncertainty as to the payee. Smith v. Willing, 123 Wis. 377, 101 NW 692, 68 LRA 940. [b] Certainty.-Where a written promise to pay a certain amount does not designate with certainty the payee, it is not a negotiable instrument. Equitable Trust Co. v. Early, 181 I11. A. 447; New York Equitable [d] A letter reciting a promise to pay the balance of an insurance premium is not a negotiable instrument, not containing any promise to pay the addressee who was the general agent of the insurer. Equitable Trust Co. v. Harger, 258 Ill. 615, 102 NE 209 [aff 177 Ill. A. 106]. [e] In the Philippines it has been held that a note by which the maker undertakes to pay a specified sum of money without designating the person to whom such payment is to be made is payable to the bearer. Gonzalez v. Blas, 3 Philippine 749. 92. Brown v. Gilman, 13 Mass. 158; Biskup v. Oberle, 6 Mo. A. 583; Rush v. Haggard, 68 Tex. 674, 5 SW 683. But compare Weston v. Myers, 33 Ill. 424 (where a duebill with no payee named was treated as a note with a blank for the payee's name, and the holder was allowed to sue on it as a note, after inserting "to myself or order"). [a] Trade checks are not negotiable where not containing the name of any payee. Ovett Land, etc., Co. v. Wimberly, (Miss.) 68 S 855. 93. McIntosh v. Lytle, 26 Minn. 336, 3 NW 983, 37 AmR 410. See also infra 287. 94. Gordon v. Anderson, 83 Iowa 224, 49 NW 86, 32 AmSR 302, 12 LRA 483. 95. Hilborn v. Pennsylvania Cement Co., 145 App. Div. 442, 129 NYS 957. 96. U. S.-Steel v. Rathbun, 42 Fed. 390. Ga.-Roth v. Donnelly Grocery Co., 8 Ga. A. 851, 70 SE 140. Ind. Harding v. State, 54 Ind. 359. Md.-Dunham v. Clogg, 30 Md. 284. Mo.-Schooler v. Tilden, 71 Mo. 580. N. Y.-Dinsmore v. Duncan, 57 N. Y. 573, 15 AmR 534; Wood v. Wellington, 30 N. Y. 218. Oh. Simmons v. Brown, 4 Oh. Dec, (Reprint) 29, ClevLRec 33. Pa.-Boyd v. Bockenkamp, 3 Wkly NC 25 (a duebill). S. C.-Fretwell v. Carter, 78 S. C. 531, 59 SE 639. Eng. Wookey v. Pole, 4 B. & Ald. 1, 6 ECL 365, 106 Reprint 839; Cruch the blank may be filled in by the holder."" [§ 288] 3. Designation by Implication or Description. While the simplest and best way to designate the payee is by his name, the paper may be so drawn as to designate a payee by implication.98 Thus it is sufficient, although the name of the payee does not formally appear as such, where his beneficial relation as promisee appears on the instrument, as where the promise to pay follows a receipt naming the person from whom the consideration proceeds.1 So an instrument which recites "received of a named person certain goods "for which we agree to pay," etc., sufficiently designates the payee.2 99 Description. The payee may be made to appear by a description instead of a name, where he can be ascertained or identified thereby at the time the note is executed or the bill is accepted, since the maxim, Id certum quod certum reddi potest, is applicable in such cases; but it is not sufficient that he will be ascertainable at the maturity of the inley v. Clarance, 2 M. & S. 90, 105 | naming no payee, is Reprint 316. strument, although the Negotiable Instruments Law Application of rule. It has been held that instruments designate the payee with sufficient clearness where payable to the trustees of a particular church; the manager of a particular bank; the treasurer of a certain municipality;10 the heirs of a named person," the heirs apparent being intended if the person is still alive; 12 the trustees acting under the will of a named person;13 the trustees to be appointed by a certain convention;14 the executors 15 or administrators 16 of the estate of a named person; the guardian of a named person;17 the name of a steamship and "owners'';18 the estate of" a not a bill of ex- whom the payment may be made. change (Douglass V. Wilkeson, 6 Gaytes v. Hibbard, 10 F. Cas. No. Wend. (N. Y.) 637), (2) and a prom- 5,287, 5 Biss. 99. [a] Check-Where the name ise to pay "thirty-five dollars on a the payee is left blank in a check, it judgment in the hands of Lewis Muris payable to the bearer, and passes phy, Esq., against Mark A. Sanders, from hand to hand by mere delivery in favor of John Chenoweth," is not until the name of the payee is in-negotiable (Mayo v. Chenoweth, 1 Ill. serted pursuant to authority. Peo. v. Gorham, 9 Cal. A. 341, 99 P 391. See also infra § 290. 97. See infra § 317. of 98. Commonwealth Ins. Co. V. Whitney, 1 Metc. (Mass.) 21; Leonard v. Mason, 1 Wend. (N. Y.) 522 (blank order for payment indorsed on a note naming a payee). 99. Cummings v. Gassett, 19 Vt. 308. [a] Illustration.-A promise to pay subjoined to a "threshing memorandum" acknowledging the quantity and price of threshing certain grain may constitute the document a promissory note and therefore transferable by indorsement, although the payee is not indicated therein by name, if the document shows with reasonable certainty that the payee is the contractor for the threshing, who had acquired a lien under the Threshers Lien Act. J. I. Case Threshing Mach. Co. v. Desmond, 8 Alta. L. 298, 22 DomL 455, 7 WestWkly 895. 1. Kessler v. Clayes, 147 Mo. A. 88, 125 SW 799 (where the instrument sued on was as follows: "Bridgeton, Mo., Nov. 28, 1902. Good for $1,000, one thousand dollars, for ten shares Kinloch Jockey Club stock surrendered to the undersigned, J. D. Lucas, by the owner of said stock, J. Kessler and for which I am liable. Joseph D. Lucas"); Cummings V. Gassett, 19 Vt. 308; Green v. Davies, 4 B. & C. 235, 10 ECL 557, 107 Reprint 1046, 1 C. & P. 451, 12 ECL 263; Ashby v. Ashby, 3 M. & P. 186; Chadwick v. Allen, Str. 706, 93 Reprint 797. "As to the identity of the payee, it is sufficient if the note discloses from whom the consideration was received. In such circumstances, the promise is interpreted to be a promise to pay him from whom the consideration moved." Kessler v. Clayes, 147 Mo. A. 88, 97, 125 SW 799. [a] Order at bottom of statement of account.-If an order for payment, naming no payee, is written at the bottom of a statement of account, this is a bill of exchange, the creditor being payee. Hoyt v. Lynch, 4 N. Y. Super. 328. But see Weeger v. Mueller, 102 Ill. A. 258. [b] Insufficient designation.—(1) An order by the payee indorsed on a note and addressed to the cashier of the bank where it is payable, but 200). 2. Maze v. Heinze, 53 III. A. 503. Conn.-Lockwood v. Jesup, 9 Conn. N. Y.-Joynson v. Richard, 44 N. Y. Oh.-Collins v. Buckeye State Ins. Eng.-Megginson V. Harper, 2 Ont.-Madden v. Cox, 5 Ont. A. 473; Patton v. Melville, 21 U. C. Q. B. 263 ("John Patton, Esquire, treasurer of the... St. John's Church . . . or his successor"). 4. Blackman v. Lehman, 63 Ala. 547, 35 AmR 57; Moody v. Threlkeld, 13 Ga. 55. 5. Yates v. Nash, 8 C. B. N. S. 581, 98 ECL 581, 141 Reprint 1294. [a] Holder of office for time being-(1) A promise to pay the secretary for the time being of a designated company is "a promise to pay some person to be ascertained ex post facto," and is insufficient. Yates v. Nash, 8 C. B. N. S. 581, 98 ECL 581, 141 Reprint 1294. But see Rex v. Box, 6 Taunt. 325, 1 ECL 635, 128 Reprint 1060 (holding that a note to the "stewardesses for the time being of the Provident Daughters' Society," naming them, will sustain an indictment for forgery, although the persons named were not legally stewardesses). (2) An instrument payable to the "secretary for the time being" of a certain society is not a promissory note, for the words "for the time being" refer to the maturity of the instrument and make it a floating promise. Storm v. Stirling, 3 E. & B. 832, 77 ECL 832, 118 Reprint 1353 [aff 6 E. & B. 333, 88 ECL 333, 119 Reprint 889]. 6. See statutory provisions. [a] Prior to the statute, it was held that where a premium note to a company is made payable to the company, "or the treasurer for the time being," the contract is with the company, since the alternative provision simply indicates the officer through 64 7. Moore v. Anderson, 8 Ind. 18. 8. Noxon v. Smith, 127 Mass. 485; Holmes v. Jaques, L. R. 1 Q. B. 376. 9. Robertson v. Sheward, 1 M. & G. 511, 39 ECL 882, 133 Reprint 434. 10. Buck v. Merrick, 8 Allen (Mass.) 123. [a] To the treasurer general of the royal treasury of Portugal see Soares v. Glyn, 8 Q. B. 24, 55 ECL 24, 115 Reprint 782. 11. Lockwood v. Jesup, 9 Conn. 272; Bacon v. Fitch, 1 Root (Conn.) 181; Cox v. Beltzhoover, 11 Mo. 142, 47 AmD 145. See also Knight v. Jones, 21 Mich. 161. 12. Lockwood v. Jesup, 9 Conn. 272. [a] Construction. A note payable to "the heirs of Cyrus K. Francis," is payable to his legal heirs in the popular sense of that term, which refers to a class of persons then in being who bore that relation to him which would constitute them his legal heirs at his death. Under our statute such legal heirs are the children living at the time of the ancestor's death and the issue of any deceased child. Love v. Francis, 63 Mich. 181, 29 NW 843, 6 AmSR 290. 13. Megginson v. Harper, 2 Cromp. & M. 322, 149 Reprint 784. 14, Caples v. Branham, 20 Mo. 244, 247, 64 AmD 183 (where the court said: "An objection to the instrument sued on being considered as a note within the statute, is, that it is made payable to trustees to be appointed by the educational convention of the methodist episcopal church south. Now, when the trustees are appointed, as has been done in this case, the note is one payable to those trustees. Thus, it will be seen, that the English and American authorities maintain that, although the statute requires a promissory note to be payable to any other person, yet it is no objection that the person is not designated at the time the promise is made, but it will be sufficient that he is ascertained before the institution of the suit"). 15. Hamilton v. Aston, 1 C. & K. 679, 47 ECL 679. 16. Moody v. Threlkeld, 13 Ga. 55; Adams v. King, 16 Ill, 169, 61 AmD 64. 17. Bingham v. Calvert, 13 Ark. 399; Hemphill v. Hamilton, 11 Ark. 425; Chitwood v. Cromwell, 12 Heisk. (Tenn.) 658. 18. Moore v. Anderson, 8 Ind. 18 (note was payable to steamboat Juda and owners, and the court held that the word "owners," as it occurred in named person, deceased;19 or the "order of the person who shall thereafter indorse" the instrument.20 So an instrument payable simply to "you" has been held valid.21 Business or assumed name. The real payee may be described by his business name,22 or by an assumed name 23 such as that of a fictitious corporation.24 So if the corporation is intended as payee it may treat as fictitious the nominal payee.25 [289] 4. Person in Esse. The payee must be an existing person, firm, or corporation. Paper cannot be made payable to a dead man.26 [§ 290] 5. Bearer-a. In General. The Negotiable Instruments Law expressly provides that an instrument in order to be negotiable must be payable to order or to bearer;27 and also that an instrument is payable to bearer when it is expressed to be so payable,28 or when it is payable to a person named therein or to bearer,29 and in certain other cases hereinafter noted.30 Independent of statute, it is sufficient to make an instrument payable simply "to bearer," 31 and "holder" is equivalent to "bearer.'' 82 [291] b. Payable to Designated Person "or" Bearer. A paper payable to a designated person "or bearer" is in effect the same as where payable to the note, sufficiently indicated a person within the intent of the law. It is a familiar rule that, where a person is designated as payee, and a question arises as to who of several persons bearing the same designation was meant, evidence is admissible to show which is the payee. Under this rule it was admissible to show who was the owner of the steamboat, and hence the designation was sufficient). 19. Ala-Hendricks v. Thornton, 45 Ala. 299. Ill-Bowles v. Lambert, 54 Ill. 237; Ind.-McKinney Blackf. 385, 43 AmD 96. Mich.-Peltier V. Babillion, Mich. 384, 8 NW 99. 7 45 N. Y.-Lyon v. Marshall, 11 Barb. 241. But see Tittle v. Thomas, 30 Miss. 122, 64 AmD 154 (where it is said that the words "estate of Benjamin Thomas" if referring to a person or persons leave it wholly uncertain whether they are intended to apply to personal representatives, distributees, or heirs). fad Is payable to legal representative Shaw v. Smith, 150 Mass. 166, 22 ND 887, 6 LRA 348; Peltier v. Babillion; 45 Mich. 384, 8 NW 99. -qb3d In New York (1) it has been held that a note payable to "the order of the estate of D. G. Littlefield" should be regarded, under the New York statute, as payable to a fictibious person, and so as equivalent je a note payable to bearer. Lewiun wi 83 NYS 826; Scott v. Parker, 5 NYS 358m (2)But the correctness of this viem seems very questionable. The #bound of the rule is that, as the ficbitious payee cannot indorse the instrument the drawer or maker must bave dntended that it should be payable to hearer. But no such intenDongcan properly be ascribed where the instrument is drawn payable to the orden af an estate; for the obours atention is that it shall be paid upon the order of the decedent's legal representatives, and that they shall fadorse the paperChecks are frequently, drawn in this way, and it appears to be the understanding of the business community that they require the indorsement of the executor pejadministrator Crawford Neg. Austroop 3326 "a7onwo“ bro ![[blocks in formation]](https://books.google.co.kr/books/content?id=8308AAAAIAAJ&hl=ko&output=html_text&pg=PA172&img=1&zoom=3&q=%22or+both,+according+to+its+tenor,+and+that+if+it+be+dishonored+and+the+necessary+proceedings+on+dishonor+be+duly%22&cds=1&sig=ACfU3U34oaGNDKSbvohOgxTGpE04VbYTYw&edge=0&edge=stretch&ci=537,79,440,111){kind=small} saps College or bearer.'' 38 Its validity does not depend on an original delivery to the person designated;39 and if he is one of the makers, although he could not as payee sue his comakers, the bearer may sue both makers.40 On the other hand, a note to a designated person, "bearer,", is a note to the person designated only and is not negotiable,11 unless by the provisions of the Negotiable Instruments Law.42 77 43 [292] c. Name of Payee Not Purporting to Be That of Any Person. The Negotiable Instruments Law expressly provides that an instrument is payable to bearer "when the name of the payee does not purport to be the name of any person. Thereunder a check payable to "cash" is payable to bearer.44 Independent of statute, a note is in effect payable to bearer if made payable to an impersonal payee, as for instance "to No. 100 or bearer":45 to the order of 1658'';46 or "to bills payable." 47 20. Rich v. Starbuck, 51 Ind. 87; U. S. v. White, 2 Hill (N. Y.) 59, 37 AmD 374. 21. Kinney v. Flynn, 2 R. I. 319, 323 (holding that an acknowledgment written in a memorandum book in the following form, namely, "I. O. you the sum of one hundred and sixty dollars, which I shall pay on demand to you," is a valid acknowledgment of indebtedness, and parol proof is admissible to show the person to whom it is addressed); Curtis v. Rickards, 1 M. & G. 46, 39 ECL 636, 133 Reprint 241. 22. Smith v. Hanie, 74 Ga. 324; 23. Bonner v. Gordon, 63 Ill. 443. Illustration.-The maker of a 25. In re Pendleton Hardware, etc., Co., 24 Or. 330, 33 P 544. 26. U. S. v. Coffeyville First Nat. Bank, 82 Fed. 410; Wayman v. Torreyson, 4 Nev. 124. But see Grant v. Wilson, 2 RevLeg 29 (holding that a note to one who is absent and who, as it happens, is dead is not void, and that his executors may maintain action on it). ![[blocks in formation]](https://books.google.co.kr/books/content?id=8308AAAAIAAJ&hl=ko&output=html_text&pg=PA172&img=1&zoom=3&q=%22or+both,+according+to+its+tenor,+and+that+if+it+be+dishonored+and+the+necessary+proceedings+on+dishonor+be+duly%22&cds=1&sig=ACfU3U34oaGNDKSbvohOgxTGpE04VbYTYw&edge=0&edge=stretch&ci=674,560,304,261) S. C.-Putnam v. Crymes, 26 S. C. L. 9, 36 AmD 250 (note to "Mancil Owens or holder"). Tex.-Smith v. Clopton, 4 Tex. 109. Que.-Exchange Bank v. Quebec Bank, 6 Montr. Super. 10. [a] So a check may be made payable to "Sapphire Mill, or bearer." State v. Cleavland, 6 Nev. 181. 34. See statutory provisions. 35. Lane v. Krekle, 22 Iowa 399; State v. Cleavland, 6 Nev. 181. 36. Grant v. Vaughan, 3 Burr. 1516, 97 Reprint 957. 37. State v. Cleavland, 6 Nev. 181. 38. Hart v. Taylor, 70 Miss. 655, 12 S 553. 39. 15. 40. Gage v. Sharp, 24 Iowa 15. 41. Warren v. Scott, 32 Iowa 22; Bloomingdale v. National Butchers', etc., Bank, 33 Misc. 594, 68 NYS 35. [a] So of an instrument reading: "Due the bearer hereof, 31. 18s. 10d.. which I promise to pay to Abraham Thompson, or order." Cock v. Fellows, 1 Johns. (N. Y.) 143. 42. See supra § 290. 43. See statutory provisions. Cleary v. DeBeck Plate Glass 44. [a] Renewed accommodation note. 27. See supra § 260. ![[blocks in formation]](https://books.google.co.kr/books/content?id=8308AAAAIAAJ&hl=ko&output=html_text&pg=PA172&img=1&zoom=3&q=%22or+both,+according+to+its+tenor,+and+that+if+it+be+dishonored+and+the+necessary+proceedings+on+dishonor+be+duly%22&cds=1&sig=ACfU3U34oaGNDKSbvohOgxTGpE04VbYTYw&edge=0&edge=stretch&ci=397,1275,236,51){kind=small} V. New v. Walker, 108 Ind. 365, 9 NE 386, 58 AmR 40; Melton v. Gibson, 97 Ind. 158; Craig v. Vicksburg, 31 Miss. 216; Merchants', etc., Bank v. 45. Ball v. Allen, 15 Mass. 433. 46. Willets v. Phoenix Bank, 9 N. Y. Super. 121. 47. Mechanics' Bank v. Straiton, 3 Abb. Dec. (N. Y.) 269, 3 Keyes 365. 1 Transer. A. 201, 5 AbbPrNS 11, 36 HowPr 190; Willets v. Phoenix Bank, 9 N. Y. Super. 121. [a] "Checks drawn payable to an impersonal payee, as to ‘bills payable" or order, or to a number or order, are [293] 6. Order. The payee is sufficiently named by making the bill payable to his order, this phrase being equivalent to making it payable to him or to his order. The payee may sue on such an instrument without indorsing it, although a purchaser from him can sue on it at common law only after indorsement by him.50 After indorsement and delivery it has the same force as any other note.51 Likewise it is sufficient to make the instrument payable to the order of 17 52 to order," 53 or merely "to order," 54 since it is in effect payable to bearer.55 So a note payable to "". or order" is negotiable.56 But where a check was made payable to the order of" and then a line was drawn through the blank space which followed, it was held invalid for want of a payee.57 The Negotiable Instruments Law expressly provides that the instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order,5 58 and in certain other ![[blocks in formation]](https://books.google.co.kr/books/content?id=8308AAAAIAAJ&hl=ko&output=html_text&pg=PA173&img=1&zoom=3&q=%22or+both,+according+to+its+tenor,+and+that+if+it+be+dishonored+and+the+necessary+proceedings+on+dishonor+be+duly%22&cds=1&sig=ACfU3U27za99zVbs9nwaXIxU7qthRdQOsw&edge=0&edge=stretch&ci=32,454,63,17){kind=small} ![[blocks in formation]](https://books.google.co.kr/books/content?id=8308AAAAIAAJ&hl=ko&output=html_text&pg=PA173&img=1&zoom=3&q=%22or+both,+according+to+its+tenor,+and+that+if+it+be+dishonored+and+the+necessary+proceedings+on+dishonor+be+duly%22&cds=1&sig=ACfU3U27za99zVbs9nwaXIxU7qthRdQOsw&edge=0&edge=stretch&ci=468,80,502,81){kind=small} 77 66 99 67 The weight of authority favors the rule that words denoting agency or official character, added to the name of the payee of a negotiable instrument, are to be deemed as descriptive merely, and that the person named is individually the payee," 63 and may make a sufficient transfer 64 or may sue on it in his own name. Words describing the official position of the payee may be disregarded as being mere description, such as "agent, "treasurer,' "president," or "manager." 69 And this is so, although in such description the principal is named, as where a note is payable to one as "lawful attorney for" another;70 to a person named, agent of a named company; to a person, "agent for G. A. Kelly or bearer';72 to a named person, "treasurer of" a named company;' ;73 to a particular person, "superintendent of" a named company;74 to a particular person, "receiver of the estate of" another designated person;75 or to a person named "for the benefit" of his principal.76 [§ 294] 7. Agent. A bill or note may be made payable to an agent. Thus a note may be taken by an agent in his principal's business, but in his held to be payable to bearer, on the drawee; or 4. Two or more payees ground that the use of the words 'or jointly; or 5. One or some of several order' indicates an intention that the payees; or 6. The holder of an ofpaper shall be negotiable, and the fice for the time being. Where the mention of an impersonal payee, ren- instrument is payable to order the dering an endorsement by the payee payee must be named or otherwise inimpossible, indicates an intention that dicated therein with reasonable cerit shall be negotiable without en- tainty." Neg. Instr. L. dorsement-that is, that it shall be payable to bearer." McIntosh V. Lytle, 26 Minn. 336, 337, 3 NW 983, 37 AmR 410. 48. U. S.-Garrettson V. North Atchison Bank, 47 Fed. 867 [aff 51 Fed. 168, 2 CCA 145]. Conn. Sherman v. Globe, 4 Conn. 246. Ky-Stevens v. Gregg, 89 Ky. 461, 12 SW 775, 11 KyL 686. Me.-Durgin v. Bartol, 64 Me. 473; Howard v. Palmer, 64 Me. 86. Mass.-Roby v. Phelon, 118 Mass. 541. Pa.-Huling v. Hugg, 1 Watts & S. 418. Eng. Smith v. McClure, 5 East 476, 102 Reprint 1153; Fisher v. Pomfret, 12 Mod. 125, 88 Reprint 1210. Ont. Myers v. Wilkins, 6 U. C. Q. B. 421. 49. Huling v. Hugg, 1 Watts & S. (Pa.) 418; Gould v. Mortimer, 4 Wkly NC (Pa.) 322. 50. Durgin v. Bartol, 64 Me. 473; Smalley v. Wight, 44 Me. 442, 69 AmD 112. See also infra §§ 1093-1098. 51. Hall v. Burton, 29 Ill. 321, 81 AmD 310; Bloomingdale v. National Butchers', etc., Bank, 33 Misc. 594, 68 NYS 35. 60. Heubach v. Rother, 9 N. Y. Super. 227. 61. Ridgely Nat. Bank v, Patton, 109 Ill. 479. 62. First Denton Nat. Bank v. Kenney, 116 Md. 24, 81 A 227, AnnCas 1913B 1337 (designated as attorney). 63. Ala.-Castleberry v. Fennell, 4 Ala. 642. Ark.-Luster v. Robinson, 76 Ark. 255, 88 SW 896. Cal.-Ord V. McKee, 5 Cal. 515. Compare Davidson v. Dallas, 8 Cal. 227, 247 (a note payable to "McPherson, agent of A. G. Dallas, or order," was held to be the property of Dallas). Ill. Chadsey v. McCreery, 27 Ill. 253; Night Hawks Burlesque Co. v. Louisville, etc., R. Co., 40 Ill. A. 49. Mass.-Bartlett V. Hawley, 120 Mass. 92; Shaw v. Stone, 1 Cush. 228; Buffum v. Chadwick, 8 Mass. 103. Compare National L. Ins. Co. v. Allen, 116 Mass. 398 (holding that an undisclosed principal could sue on a note made payable to his agent individually); Gilmore v. Pope, 5 Mass. 491 (a note payable to an officer of corporation, and it was decided that he could not sue on it). a Mo.-Toledo Agricultural Works v. Heisser, 51 Mo. 128. N. H.-Underhill v. Gibson, 2 N. H. 352, 9 AmD 82. 52. Rich v. Starbuck, 51 Ind. 87. 53. Chamberlain v. Young, [1893] 2 Q. B. 206 (construing it as meaning "pay to my order," so that the maker could indorse and transfer it). 54. Davega v. Moore, 14 S. C. L. 482. See also Fretwell v. Carter, 78 | 208. S. C. 531, 59 SE 639. 55. Steel v. Rathbun, 42 Fed. 390. 56. Fretwell v. Carter, 78 S. C. 531, 59 SE 639. N. Y.-Nelson v. Eaton, 26 N. Y. 410: Davis v. Garr, 6 N. Y. 124, 55 AmD 387; Moss v. Livingston, 4 N. Y. 64. See infra §§ 512, 513. 65. Kelly v. Ware, 22 Ark. 449 (a suit by the successor in office on a note to "J. L. May, common school 57. Gordon v. Lansing State Sav. commissioner of township eighteen Bank. 133 Mich. 143, 94 NW 741 (af-south.. . or his successor in office"); firming by an equally divided court, Judges Carpenter and Grant holding that the check was valid on the ground that it was payable to the order of an impersonal payee). 58. See statutory provisions. 59. "The instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order. It may be drawn pavable to the order of: 1. A payee who is not maker, drawer or drawee; or 2. The drawer or maker; or 3. The Tooke v. Newman, 75 Ill. 215 (where [a] Illustration.-A promissory note payable to "T. C. Estee for First National Bank" is the same as if 71 payable to T for the use of the bank. The legal title to the note, without indorsement thereon, is in T and not in the bank and he alone can maintain an action on it. Maher v. Laramie First Nat. Bank, 93 Ill. A. 404. [b] Effect of expiration of term of office. (1) In Whitcomb v. Smart, 38 Me. 264, the case of a note to "Ebenezer Whitcomb, P. S. of Adelphian Lodge," the party mentioned was allowed to sue in his own name, by authority of the members of the lodge, after he had ceased to be secretary. (2) And where a note was made to "Joseph M. White Trustees of the Apalachicola Land Company [a voluntary association] or their successors in office, or order," the survivors were allowed to sue, although their term of office had expired and their successors had been appointed. Davis v. Garr, 6 N. Y. 124, 55 AmD 387. ![[ocr errors]](https://books.google.co.kr/books/content?id=8308AAAAIAAJ&hl=ko&output=html_text&pg=PA173&img=1&zoom=3&q=%22or+both,+according+to+its+tenor,+and+that+if+it+be+dishonored+and+the+necessary+proceedings+on+dishonor+be+duly%22&cds=1&sig=ACfU3U27za99zVbs9nwaXIxU7qthRdQOsw&edge=0&edge=stretch&ci=823,730,5,4){kind=small} [c] If the note is payable to the treasurer of a society, not by name, his assignee may bring suit on it in the name of his successor in office. McDonald v. Laughlin, 74 Me. 480. 66. Preston v. Dunham, 52 Ala. 217; Toledo Agricultural Works v. Heisser, 51 Mo. 128; Coffin v. Grand Rapids Hydraulic Co., 61 N. Y. Super. 51, 18 NYS 782 [aff 136 N. Y. 655 mem, 32 NE 1076]; Johnson v. Catlin, 27 Vt. 87, 62 AmD 622. 67. Shaw v. Stone, 1 Cush. (Mass.) 228. But see Alston v. Heartman, 2 Ala. 699; McBroom v. Lebanon, 31 Ind. 268; Babcock v. Beman, 11 N. Y. 200 (where the circumstances were such as not to warrant the application of the general_rule). 68. Van Ness v. Forrest, 8 Cranch (U. S.) 30, 3 L. ed. 478; Lester v. McIntosh, 101 Ga. 675, 29 SE 7 (corporation named in his title); Hately v. Pike, 162 11. 241, 44 NE 441, 53 Am SR 304; Wolcott v. Standley, 62 Ind. 198. 69. Chase v. Behrman, 1 NYCityCt Austell v. Rice, 5 Ga. 472. 71. Night Hawks Burlesque Co. v. Louisville, etc., R. Co., 40 Ill. A. 49; Buffum v. Chadwick, 8 Mass. 103; Savage v. Carter, 64 N. C. 196. 352. 70. 72. Castleberry v. Fennell, 4 Ala. 642. 73. Chadsey v. McCreery, 27 Ill. 253; Clap v. Day, 2 Me. 305, 11 AmD 99. 74. 75. 478. 76. Durfee v. Morris, 49 Mo. 55. McLain V. Onstott, 3 Ark. Turner v. Eldridge, 6 Ala. 821. Notwithstanding these decisions it is often held that descriptive words added to the name of the payee of a negotiable instrument have force and significance and operate to vest in the principal the title to the instrument and a right of action thereon," and that the principal may transfer the instrument;78 and this is true, although the principal has not been disclosed,79 or has been disclosed as the creditor but not as the payee.80 Especially is this so where the principal's business is habitually done in the agent's name.81 77. Ala.-Hazard v. Planters', etc., Bank, 4 Ala, 299. Cal.-Davidson v. Dallas, 8 Cal. 227. Fla.-Little v. Bradley, 43 Fla. 402, 31 S 342. Ga.-Young v. Murray, 3 Ga. A. 204, 59 SE 717. Ill.-Friedline v. Carthage College, 23 Ill. A. 494. Ind. Vater v. Lewis, 36 Ind. 288, 10 AmR 29. Compare Meikel v. German Sav. Fund Soc., 16 Ind. 181; Jones v. Cincinnati Type Fdy. Co., 14 Ind. 89. Kan.-Mann v. Springfield Second Mass.-Commercial Bank v. French, 21 Pick. 486, 32 AmD 280. N. C.-Overman v. Grier, 70 N. C. 693 (where A made a note to C for B's debt to C which was not accepted or credited by C, and B was held prima facie C's agent and was allowed to sue in C's name). But see Grist v. Backhouse, 20 N. C. 496 (where it was held that a note to "Richard Grist, agent of his assignees, or order," could not be sued by the assignees). Vt.-Rutland, etc., R. Co. v. Cole, 24 Vt. 33 (where court declines to follow U. S. Bank v. Lyman, 1 F. Cas. No. 924, 20 Vt. 666, decided by United States circuit court); Vermont Cent. R. Co. v. Clayes, 21 Vt. 30; Arlington v. Hinds, 1 D. Chipm. 431, 12 AmD 704. To same effect Kitchen v. Holmes, 42 Or. 252, 70 P 830. ![[ocr errors]](https://books.google.co.kr/books/content?id=8308AAAAIAAJ&hl=ko&output=html_text&pg=PA174&img=1&zoom=3&q=%22or+both,+according+to+its+tenor,+and+that+if+it+be+dishonored+and+the+necessary+proceedings+on+dishonor+be+duly%22&cds=1&sig=ACfU3U08Mf3xw2x2VGMOpdDzZyh7mdAJMQ&edge=0&edge=stretch&ci=356,281,4,16){kind=small} [a] Illustrations.-(1) A note indorsed to "C. J. Pr'st M. P. F. Co." becomes the note of the corporation. | Dupont v. Mt. Pleasant Ferry Co., 43 S. C. L. 255. (2) Where the body of a contract with an individual clearly shows that promises made to him were intended for the benefit of a corporation, the corporation may maintain an action on the contract without an assignment being expressly made to it (Taunton, etc., Turnp. Corp. v. Whiting, 10 Mass. 327, 6 AmD 124); (3) and the agent cannot sue on the contract (Gilmore v. Pope, 5 Mass. 491) [b] Amplified statement.-"When the agency is fully known to the promisor and he well understands that the agent has no personal interest in the subject matter of the contract, and the promise is to him as agent only, we do not perceive any good reason why the principal may not declare specially as on a promise made to himself." Levant v. Parks, 10 Me. 441, 446. Paper payable to cashier of bank. Likewise, by the well established usage of banks, paper made payable to the bank cashier by his official title may be sued on by the bank.82 And the Negotiable Instruments Law expressly provides that, where an instrument is drawn to a person as cashier or other fiscal officer of a bank, it is deemed prima facie payable to the bank of which he is such officer.83 [295] 8. Executors, Administrators, Trustees, or Guardians. A bill or note made payable to one who is described as "executor,' ‚""administrator," 84 and this is true, although the payee's official character is designated by initial letters only (Dupont v. Mt. Pleasant Ferry Co., 43 S. C. L. 255); (5) but the contrary was held of a note payable to a person named, "superintendent of the Decatur Agricultural Works" (Durfee v. Morris, 49 Mo. 55). (6) Still stronger is the case of a note to a corporation officer "or his successors in office" (Tainter v. Winter, 53 Me. 348; Trustees Ministerial, etc., Fund v. Parks, supra); (7) and more especially if it is a municipal corporation (Garland V. Reynolds, 20 Me. 45; Arlington V. Hinds, 1 D. Chipm. (Vt.) 431, 12 AmD 704 and note). (8) In such a case suit may be brought by the municipality in the name of the payee's successor (Fisher v. Ellis, 3 Pick. (Mass.) 322), (9) or by such successor (Packard v. Nye, 2 Metc. (Mass.) 47; Fisher v. Ellis, supra), | (10) although this has been denied (Upton v. Starr, 3 Ind. 508). [d] If the payée is designated by official title only (1) and is not named, suit on the note may be by the corporation (State Bank v. Jenkins, 7 Ark. 389; Bower v. State Bank, 5 Ark. 234; Vermont Cent. R. Co. v. Clayes, 21 Vt. 30), (2) and in some cases, it is held, only by the corporation (Alston v. Heartman, 2 Ala. 699; Vater v. Lewis, 36 Ind. 288, 10 AmR 29; Nichols v. Frothingham, 45 Me. 220, 71 AmD 539). (3) But if the principal has changed its corporate name, as used in the note, it must aver and prove its identity. Madison College v. Burke, 6 Ala. 494. [e] But at common law (1) the principal can neither sue on nor transfer a note payable to "A to the use of B" (Evans v. Cramlington, Carth. 5, 90 Reprint 608, 2 Vent. 307, 86 Reprint 456), (2) or to "Reuben Hause, agent for Reed, Brothers & Thomas" (Clark v. Reed, 20 Miss. 554). [f] An instrument drawn payable to a person with the abbreviation "Pres.," or the like, is payable to the corporation of which he is president, under the Negotiable Instruments Law, and may be negotiated by either the indorsement of the corporation or of the officers. Griffin v. Erskine, 131 Iowa 444, 109 NW 13, 9 AnnCas 1193. 78. See infra § 512. 79. Jacobs v. Benson, 39 Me. 132, 63 AmD 609: National L. Ins. Co. v. Allen, 116 Mass. 398 (where the note was made to "J. T. Phelps, agent"); Taunton, etc., Turnp. Corp. v. Whiting, 10 Mass. 327, 6 AmD 124. 80. Bowie v. Foster, Minor (Ala.) 264 (a note acknowledging a debt to be "due James Foster which I promise to pay Thomas Carson, Sheriff"). [c] A fortiori the principal may bring suit (1) on a note to "Frederick J. Waldo, agent of the Enterprise Insurance Company" (Black v. Enterprise Ins. Co., 33 Ind. 223; Bean v. Dolliff, 67 Me. 228); (2) to "D. A. Neale, president of the Eastern Railroad Company" (Eastern R. Co. v. Benedict, 5 Gray (Mass.) 561, 66 AmD 384); (3) or to "Charles W. Smith, Treasurer of" a designated company (Vater v. Lewis, 36 Ind. 288, 10 AmR 29; McBroom v. Lebanon, 31 [a] The bank may sue (1) on such Ind. 268; Trustees Ministerial, etc., paper without indorsement (Nave v. Fund v. Parks, 10 Me. 441; Rutland, Lebanon First Nat. Bank, 87 Ind. 204; etc., R. Co. v. Cole, 24 Vt. 33); (4) | Commercial Bank v. French, 21 Pick. 81. Societe des Mines, etc., V. Mackintosh, 5 Utah 568, 18 P 363. 82. Baldwin v. Newbury Bank, 1 Wall. (U. S.) 234, 17 L. ed. 534; Barney v. Newcomb, 9 Cush. (Mass.) 46; Lookout Bank v. Aull, 93 Tenn. 645, 27 SW 1014, 42 AmSR 934. See also infra § 512. (Mass.) 486, 32 AmD 280), (2) although it be not named in the instrument (Newbury Bank v. Baldwin, 2 F. Cas. No. 892, 1 Cliff. 519 [aff 1 Wall. 234, 17 L. ed. 534]; Blair v. Mansfield First Nat. Bank, 3 F. Cas. No. 1,485, 2 Flipp. 111; Stamford Bank v. Ferris, 17 Conn. 259; Nave v. Lebanon First Nat. Bank, 87 Ind. 204; Nave v. Hadley, 74 Ind. 155; Pratt v. Topeka Bank, 12 Kan. 570; Haynes v. Beckman, 6 La. Ann. 224; Commercial Bank v. French, 21 Pick. (Mass.) 486, 32 AmD 280; Garton v. Union City Nat. Bank, 34 Mich. 279; Lacey v. Central Nat. Bank, 4 Nebr. 179; Angelica First Nat. Bank v. Hall, 44 N. Y. 395, 4 AmR 698; State Bank v. Ohio State Bank, 29 N. Y. 619; Wright v. Boyd, 3 Barb. (N. Y.) 523; Rutland, etc., R. Co. v. Cole, 24 Vt. 33; Manchester Bank v. Slason, 13 Vt. 334. Contra U. S. Bank v. Lyman, 20 Vt. 666). [b] The cashier may also sue (1) in his own name whether the bank is designated (Porter v. Nekervis, 4 Rand, (25 Va.) 359) (2) or not (McHenry v. Ridgely, 3 Ill. 309, 35 AmD 110; Barney v. Newcomb, 9 Cush. (Mass.) 46; Fairfield v. Adams, 16 Pick. (Mass.) 381; Garton v. Union City Nat. Bank, 34 Mich. 279; Horah v. Long, 20 N. C. 416, 34 AmD 378; Johnson v. Catlin, 27 Vt. 87, 62 AmD 622), (3) or he may sue for the use of the bank (Davis v. Baker, 71 Ga. 33), (4) or his successor may sue (Dutch v. Boyd, 81 Ind. 146). 83. Griffin v. Erskine, 131 Iowa 444, 109 NW 13, 9 AnnCas 1193. 84. Ala.-Duncan v. Stewart, 25 Ala. 408, 60 AmD 527. Ark.-Cravens v. Logan, 7 Ark. 103. See also Duke v. Crabtree, 5 Ark. 478; Perkins v. Crabtree, 5 Ark. 475 (all three cases holding that where A executes a note to B, "administrator," B cannot maintain an action thereon as administrator. The money when collected would not be assets). Ga.-Saffold v. Banks, 69 Ga. 289; Kennedy v. Gelders, 7 Ga. A. 241, 66 SE 620. Ind. Speelman v. Culbertson, 15 Ind. 441. La.-Clampitt v. Newport, 8 La. Ann. 124; Gilman v. Horseley, 5 Mart. N. S. 661; Urquhart v. Taylor, 5 Mart. 200. Md. Turner v. Plowden, 2 Gill. & J. 455 (holding that an action instituted by a person named on a single bill, payable to "John Llewellin, executor of Jeremiah Boothe," is an action in his own right, to which a debt due from him may be set off; and that, in order to exclude the setoff, he cannot go into evidence of the consideration of the bill, to show that it was given for a debt due B). Mass.-Hill v. Whidden, 158 Mass. 267, 33 NE 526 (holding that, where an estate furnishes the consideration for a note, but it is made payable to the executrix in her own name, she may recover thereon in her own name and account therefor to the estate); Plimpton v. Goodell, 126 Mass. 119. Miss. Carter v. Saunders, 3 Miss. 851. Mo.-Thomas v. Relfe, 9 Mo. 377. N. Y.-Litchfield v. Flint, 104 N. Y. 543, 11 NE 58; Reznor v. Webb, 36 |