Canfield v. McIlwaine ex rel. Wood

Maulsby, J., delivered the opinion of the Court. This suit is brought on a due bill, made by the appellants, (defendants below,) payable to Samuel Turbutt, and by him assigned, in blank, in December, 1866, and delivered to S. O. Mcllwaine, who, in April, 1867, formed a partnership with Claudius L. Goodwin, when the due bill passed to the firm, and became part of the partnership effects. In November, 1867, McIlwaine delivered the due bill to Algernon R. Wood, for whose use the suit is brought, with the blank over the name of Turbutt filled up, “pay Mcllwaine, Goodwin & Co., or order.” The defendants had notice of the assignments. After the delivery to the cestui que use, the suit was brought.

The narr. contains the money counts and also a count stating that Turbutt assigned the due bill to the plaintiffs on or about December, 1866. The plaintiffs’proof is: that the partnership between the legal plaintiffs, was formed in April, 1867; that Mcllwaine received the due bill from Turbutt, as margin on a contract for the purchase and sale of gold, to be made by Mcllwaine, as broker, for account of Turbutt, which contract, in writing, is set out; that Turbutt was indebted to Mcllwaine individually, but in what amount cannot be stated or approximate d that after the formation of the partnership, Turbutt ⁹⁸ had a transaction with the firm and owed the firm a balance of $419.00. The written agreement is to the effect, that Turbutt was to deposit, with Mcllwaine, ten per cent on the par value of the gold to be bought for him and to keep the deposit equal to ten per cent on the par value, as the same might fluctuate at the stock exchange, whenever called upon tado so, and the due bill was assigned on account of this deposit. For defendants, Turbutt proved that at the time of the trial he was the owner of the due bill; that he assigned it to McIlwaine, to be a margin on any gold transactions he might have with him; that he had a transaction, which resulted in a profit to him, which McIlwaine paid him; that he had no recollection of ever having had any gold transactions with McIlwaine, Goodwin & Co.; that when they failed they owed him $85 or $90, for a draft collected by them; that when he assigned the due bill to McIlwaine, the agreement was, that if he failed to make good any default, he (McIlwaine) would have the right to rely on the due bill for indemnity; that he never authorized McIlwaine to assign the due bill, except in case of default and that he never became indebted or made default.

The plaintiffs prayed the Court to instruct the jury, that if the jury found that the due bill was signed by defendants and endorsed in blank by Turbutt, and delivered so endorsed to Mcllwaine, and that the endorsement was filled up by him, and that defendants were notified of the assignment, the plaintiffs were entitled to recover and the Court, granted the prayer. To entitle the plaintiffs to a verdict, they must show a title to the cause of action, and their title must be in accordance with the terms of the Code, which authorize them as assignees of the chose in action, to sue in their own name. Those terms are that they be bona fide entitled thereto, by assignment in writing, &c. They cannot maintain their suit at all, unless they be bona fide entitled.

The instruction of the Court below is that they could recover without any reference to the bona fides of their title. It is, that if the jury find the facts enumerated, to wit: defendants’ signatures, endorsement in blank ⁹⁹ by Turbutt, delivery by him to Mcllwaine, filling up of endorsement by Mcllwaine and notice of assignment to defendants, the plaintiffs can recover. If there had been no proof, attacking the bonafides of the assignment to McIlwaine, Goodwin & Co., the instruction would have been sustained, because in the absence of proof the presumptions are in favor of the bonafides, — it will be presumed — and the requirements of the statute would be satisfied by the legal presumptions. And in that case, the same presumptions would have