ute,25 nor to effect a fraudulent design.20 But where there is no dishonest intention or fraudulent purpose a note may be dated as of a day antecedent to that on which it is put in circulation; and no presumption will arise from that circumstance to impeach its validity.2

27

In the case of Almich v. Downey, Vanderburgh, J., says: "If a note is antedated or postdated by the maker, it is a valid contract from the time of its delivery; and since it is competent to express the agreement of the parties in that way, the courts will construe the instrument according to its terms; and if, when delivered, it is by its date overdue, it will then be treated as a demand note." "28 Postdating a check does not affect its validity.

25. Bayley v. Taber, 5 Mass. 286. 26. Lansing v. Gaine, 2 Johns. (N. Y.) 300.

27. Richter v. Selin, 8 Serg. & R. (Pa.) 425; Mitchell v. Culver, 7 Cow. (N. Y.) 336; Brewster v. McCardell, 8 Wend. (N. Y.) 478.

28. 45 Minn. 460, 48 N. W. 197. Wrong date corrected. In this case a six months' note was dated June 25, 1886, but was actually executed June 25, 1887, the date expressed being a mistake. In addition to the

29. Frazier v. Trow's Printing & Bookbinding Co., 24 Hun (N. Y.), 281, affd. in 90 N. Y. 678.

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extract from the opinion of the court in this case contained in the text the court said: "But where the note is intended to bear date as of the time of its discovery, that is the true date; and if by mistake another date is written on the face of the note, the mistake may be corrected, except as to an innocent indorsee or purchaser who would be prejudiced by the correction, and the mistake may be shown by parol. (2 Parsons on Notes and Bills, 514.) As it clearly appeared

termination made by the Supreme Court was affirmed, and notwithstanding the fact that the instrument was postdated, it was held to be valid and payable on the day of its date. Mohawk Bank v. Broderick, 13 Wend. (N. Y.) 133; Salter v. Burt, 20 Wend. (N. Y.) 205. See also Weld v. Savings Bank, 158 Mass. 339, 33 N. E. 519; Burns v. Kahn, 47 Mo. App. 215.

Postdated checks.- It was claimed in the above case, on behalf of the defendant, that the instruments in controversy were void as legal obligations because they were issued before the time when they respectively bore date, and cases were cited in the argument containing intimations that such should There are many cases in this counbe the legal principle applicable to try and in England holding that a postthem. The court said: Those cases, dated check is a bill of exchange payhowever, have not followed, and no rea- able on a future day; hence it has son seems to exist for holding that been held that a postdated check isan instrument of this nature may not sued by a person who has authority lawfully be issued as of a date subse- only to issue checks does not bind the quent to the time of its delivery. It firm. Hedley v. Bainbridge, 3 Q. B. then contains all the elements of a (Eng.) 316. See also Forster v. Mccontract, but payment upon it can only be demanded upon the day of its date, or some day succeeding that time, and so they have been regarded by the courts of this State." Citing Mohawk Bank v. Broderick, 10 Wend. (N. Y.) 304. This case was subsequently taken to the Court of Errors where the de

Kreth, 36 L. J. Exch. (Eng.) 95, 4 Eng. Rul. Cas. 210; Bowen v. Newell, 8 N. Y. 190. But in the following cases such an instrument has been held to be a check: In re Brown, 3 U. S. 502; Champion v. Gordon, 70 Pa. St. 474; Way v. Towle, 155 Mass. 374, 29 N. E, 506.

66

66

#

d. When date may be inserted; statutory provision.- The Negotiable Instruments Law contains the following provision: "Where an instrument expressed to be payable at a fixed period after "date is issued undated, or where the acceptance of an instrument payable at a fixed period after sight is undated, any holder may "insert therein the true date of issue or acceptance, and the instru"ment shall be payable accordingly. The insertion of a wrong date "does not avoid the instrument in the hands of a subsequent holder "in due course; but as to him, the date so inserted is to be regarded "as the true date." 30 The authority conferred upon the holder of a negotiable instrument to insert therein the true date of issue or acceptance, is based upon the same reason as the authority vested in a person in possession of such an instrument to complete it by filling up the blanks therein.31 When a person executes a negotiable instrument with the date blank, the instrument carries on its that the note was given in 1887, and of justice require it, the real date may the wrong year inserted in the date be inquired into and effect given to the by mistake, the note, by intendment instrument. But while this has been of law, was payable in six months conceded, it has been argued that the from June 25, 1887; and if negotiated error should have created suspicion and and indorsed to the plaintiff before lead to inquiry. But in the due, in good faith and for value, the case of State Bank v. McCoy, 19 P. detense of want of consideration is not F. Smith (Pa.), 204, Judge Williams available; and the mistake may in held that 'even if the evidence had such case be shown as well by the in- made out a case of gross carelessness dorsee as the payee of the note. on the part of the bank, that alone (Drake v. Rogers, 32 Me. 524; Ger- would not have been sufficient to demania Bank v. Distler, 4 Hun (N. feat his title to the note. There must Y.), 633, affd. in 64 N. Y. 642; 1 have been proof that the bank took Daniel on Negotiable Instruments, it mala fide or with notice of the § 83; 1 Edwards on Bills and Notes, fraud.' And it was said in Morehead § 171.)" v. Gilmore, 27 P. F. Smith (Pa.), 118, that 'the latest decisions both in England and in this country, have set strongly in favor of the principle that nothing but real evidence of knowledge or notice of fraud or mala fides can impeach the prima facie title of the holder of negotiable paper taken before maturity. The facts show here neither knowledge by the indorsee, notice to him, nor fraud or bad faith on his part, and the apparent defects in the note cannot stand in the place of requisite affirmative proof." also Collin v. Driscoll, 69 Cal. 550, 11 Pac. 244; Baldwin v. Freydendall, 10 Ill. App. 106; Cochran v. Duffy, 5 Week. Law Bul. (Ohio) 646.

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In the case of McSparran v. Neeley, 91 Pa. St. 17, 26, a note was executed on the 24th of January, 1872, and was dated January 24, 1871. The court said: "As a final ground of defense, the irregularities appearing on the face of the note have been urged as sufficient to defeat the plaintiff's claim. By mistake it was antedated, and it was not stamped until after it was negotiated. It was conceded that the validity of an instrument is not af fected by an error in the date, even if it is not dated at all; the time will be computed from the day when it was issued or made, or, if that cannot be exactly ascertained, from the day when its existence was first established. In both cases they will be valid in point of law unless some statute exists to the contrary; and where the purposes

See

30. Neg. Inst. L. (N. Y.), § 32. For the same section in statutes of other States see Appendix.

31. Neg. Inst. Law (N. Y.), § 33.

face an implied authority in any successive holder to fill up blank. 32

the

$ 45. Instruments in blank; completion by holder and effect thereof.

a. In general.— It is a principle generally recognized by the law merchant, that where an incomplete instrument is delivered to another by the party primarily liable, with an authority, express or implied, to put the instrument in circulation as negotiable paper, any holder may fill up the blanks and perfect the instrument, provided nothing is inserted which is not essential to the completeness of the instrument.33

32. Filling in blank date.- In New York the leading case on this point seems to be that of Page v. Morrell, 3 Keyes (N. Y.), 117, 33 How. Pr. 244, 3 Abb. Dec. 433. In this case the facts

were:

payment, will bind the indorser, for any sum, payable at any time, which the person, to whom the indorser trusts it, chooses to insert. The date of a note is no exception to this rule, although it is not essential to the The note was made on June 10, 1859, validity of a note that the date be for the sum of $50, payable thirty days expressed; for, where a note has no after date; it was dated "June," but date, the time, if necessary, may be with a blank for the day of the month. inquired into, and will be computed Thus, "June 1859." In this con- from the day it was issued. But it is dition the note was indorsed by the essential to the free and uninterrupted defendant Nellis for the accommoda- negotiability of a note that it should tion of the makers, and on the 10th day of June the makers transferred it, for value, to one Wiles. On the 15th of the month, Wiles transferred the note to the plaintiffs, for value, and they, without the knowledge of any of the other parties thereto, filled the blank with the date with the figure "1," so as to make it June 1,

1859."

be dated and, therefore, all the parties
to a note intended for circulation, are
presumed to consent that a person, to
whom such a note is intrusted for the
purpose of raising money, may fill up
the blank with a date. (Ib.) And a
blank, left for the day of the month,
may be filled with any day in that
month, there being no fraud, or express
direction to the contrary."

See also the following cases:
United States.- Goodman V. Si-

Arkansas. Overton V. Matthews, 35 Ark. 146, 37 Am. Rep. 9.

Illinois.― Gill v. Hopkins, 18 Ill. App. 74.

Indiana.- Emonds v. Meeker, 55 Ind. 321.

The court said: "There can be no doubt that, if the same day of the month had been inserted by monds, 20 How. 343, 15 L. Ed. 934; the makers when they negotiated Michigan Bank v. Eldred, 9 Wall. 544, the note to Wiles, without the 19 L. Ed. 763. knowledge of the indorser, the note would not thereby have been rendered invalid, as against the indorser; and so if the day had been inserted by Wiles, with the express direction or consent of the maker. In such case, the note, when indorsed, being perfect in every respect but the date, and that having been left blank, the makers would have had an implied authority from the indorser, to insert any day of the month they might think proper. (Mitchell V. Culver, 7 Cow. [N. Y.] 336; M. & F. Bank v. Schuy- 33. Completion of imperfect inler, Id. 337, note.) Such author- strument by holder.- In the case ity results from the general rule, of Weyerhauser v. Dun, 100 N. Y. that indorsement an was held a blank 150, 2 N. E. 274, it note, without sum, or date, or time of that one who signs or indorses a

on

Massachusetts.- Andrus Bank V. Kimball, 10 Cush. 373.

Missouri.- Goodman v. Simonds, 19 Mo. 106.

Pennsylvania.- Hepler v. Mt. Carmel Sav. Bank, 97 Pa. St. 420, 39 Am. Rep. 813.

And it has been held that while as between the original parties the authority must be strictly exercised, as between the party primarily liable and an innocent third person the person to whom the instrument was intrusted must be deemed to have been the agent of the party who committed such instrument to his custody, and he is, therefore, bound by the agent's act, even though the authority is departed from. This rule, however, is not without

dissent. Thus, in a case where there was no restriction upon the issue of an instrument, but there was a blank preceding the amount, and the blank was filled up, increasing the amount intended, it was held that an innocent third party could not recover. 35

We have already considered the authority of a holder to insert in an undated instrument the true date of issue and acceptance.36 If a bill or note contains a blank for the name of the payee, the person to whom it is negotiated may fill in the blank by inserting his own name; ;37 and when a note is signed and sent out in blank,