Gramatan National Bank & Trust Co. v. Barron

Grason, J., delivered the opinion of the Court. Bryton Barron and Ella L. Barron executed and delivered a note dated June 24, 1948, at their home in Springfield, Fairfax County, Virginia, to the American Weather Windows, Inc. The amount of the note is $371.88, payable in monthly installments of $10.33, and it contains a power of attorney to enter judgment. On March 26, 1948, Bryton Barron executed a written contract with the American Weather Windows, Inc., under which it agreed to install certain storm windows in his home at Springfield, Virginia, and the note was given in payment for the installation of the storm windows. This note was endorsed, without recourse, to the Gramatan National Bank & Trust Co. of Bronxville, New York (appellant), and judgment was entered by it against the makers thereof (appellees) in the Superior Court of Baltimore City.

Thereafter appellees appeared specially in the case for the purpose of striking out the judgment. Testimony was taken in the matter, counsel heard, written opinion filed, and the court ordered that the motion be sustained, and the case finally dismissed. The case comes here on appeal. When this note was executed the place where it was signed by the payors did not appear on its date line, and the payee filled in “Washington, D. C.,” as the place of execution.

This was not true. The implied power to fill in blanks in a negotiable instrument does not authorize the insertion of a false place of execution, so as to give apparent validity to a power of attorney which is, itself, not a negotiable instrument. The appellant contends that under the terms of the warrant of attorney contained in the note the payors agreed to the appearance of any attorney of any court ⁶⁵² of record in the United States to appear for them and confess judgment on their behalf for the amount then due, interest, costs and attorney’s fees, in case of default by them. Having thus agreed, the law of the state where suit is brought on the note governs* even though judgment could not be entered under the power of the note in a court of the state where it was executed.

The appellees contend the legality of the warrant of attorney in this note must be determined by the law of the place of its execution, and it is conceded that it was signed in Virginia. In this case we are considering solely the legality of the warrant of attorney contained in the note here sued on. It is as follows: “* * * if permitted by law, undersigned jointly and severally authorize any attorney at law to appear in any court of record in the United States for undersigned and confess judgment for such amount as may be unpaid hereon at maturity, together with interest and 15% of the amount unpaid hereon for collection and attorney’s fees, in favor of the holder hereof, and undersigned waives the issue of process and all right of appeal.” Michie’s Code of Virginia, 1942, § 6130a, (i) provides: “No judgment hereafter confessed in the office of the clerk of any court of record in this Commonwealth, by virtue of a warrant, or power of attorney, shall be valid, unless such warrant, or power of attorney be in conformity with the provisions of this act.” Section 6130a(c) of said code provides: “* * * any warrant incorporated in, and made part of any note or bond authorizing the confession of judgment thereon * * * shall specifically name therein, the attorney or attorneys, or other person or persons authorized to confess such judgment and the clerk’s office in which the judgment is to be confessed.” Bank of Chatham v. Arendall, 178 Va. 183 , 16 S. E. 2d 352 . . It is perfectly obvious that a judgment on this note could not be entered under the warrant of attorney contained therein in a court of record in Virginia.

The war ⁶⁵³ rant of attorney under the Virginia Code was a dead thing; it was null and void. “The general rule that the validity of a note is determined by the law of the place where it was executed is applicable in determining the validity of a stipulation contained in the note as to confession of judgment by attorney.” 10 C. J. S., Bills and Notes, § 69, page 501. In Forsyth v. Barnes, 228 Ill. 326 , 81 N. E. 1028, 1029 , 10 Ann. Cas. 710, it is said: “The note and warrant of attorney appearing from this record to have been executed in Ohio and payable there, questions regarding their validity and the capacity