Jackson v. Myers

Alvey, J., delivered the opinion of the Court. Whether the note sued on is to be treated as a negotiable promissory note, or as a single bill, under the seal of the corporation, the maker, is the main question in this cause, and the one upon which all the other questions depend. According to the rulings of the Court below, ⁴⁶² the instrument was held to be a single bill, and consequently the appellees were not liable on a mere endorsement of the note, as they would have been if the note had been a negotiable promissory note, instead of what it was held to be. The appellees being sued, and sought to be held liable, by reason of their endorsement of the note, if the instrument be in reality a specialty, though in the form of-a promissory note, no obligation or liability arose from the mere endorsement of it, either by the statute or the custom of merchants.

As a sealed instrument, it could be assigned, as required by the statute,, to enable the assignee to sue in his own name; but then no liability would arise by the assignment, upon which the assignor could be held responsible, unless the assignment be made in the manner and form prescribed by the Code, Art. 9, secs. 8 and 9, or unless the assignment embody a separate and distinct contract or undertaking, as in the case of Gist vs. Drakeley, 2 Gill, 330 . If the endorsement of a sealed instrument be in blank, accompanied by delivery, the party to whom the instrument is delivered may. fill up the blank, with a full assignment to himself, and thus become absolute owner, with right to maintain suit in his own name, within the meaning‘of the statute; and though the assignment may not be extended until the time of trial, it is regarded, for the jmrposes of the suit, as having been made in its extended form when the instrument was endorsed; as -was the case in Chesley vs. Taylor, 3 Gill, 251 . Here, the note was endorsed in blank by the appellees, who were the payees in the note, and after such endorsement, but before or at the time.of the trial, the appellants wrote over the blank endorsement the words, “We hereby endorse and assign the within, and direct payment thereof to be made to Priscilla Lynch,” one of the appellants. This was good as an assignment, upon the assumption ⁴⁶³ that the note was a single bill; and it was all-sufficient as an endorsement in full, treating the instrument as a negotiable promissory note.

As an endorsement of negotiable paper it created a liability on the part of the appellees, but as an assignment of a non-negotiable chose in action it created none, and only transferred the right of the assignors, with the power to sue and maintain an action oil the note in the name of the assignee. It was in this latter aspect that the Court below instructed the jury against the right of the appellants to recover on the endorsement against the appellees. But is the note a specialty or single bill, as distinguished from a promissory note, made negotiable by the statute of 3 and 4 Anne, ch. 9 ? The Building Association that made the note, was organized under the present general incorporation law of the State, and by the 9th and 11th articles of its association, it is provided that its board may issue promissory notes on mortgages only, and that such notes shall always be drawn to the order of the mortgagor, who shall, in all cases, endorse the notes thus drawn.

The president, secretary, treasurer and three directors, are authorized to sign all promissory notes issued by the association. The note in question was issued on the mortgage of the payees of the note, and is conceded to have been under the authority of the articles just referred to. The note is strictly in form a promissory note, payable to the order of the payees named, who are the present appellees. It was drawn at sixty days time, and payable at a certain named bank.

It has been treated as ordinary negotiable paper, and hence it was protested for non-payment. It was signed by the officers designated in the articles of association to execute promissory notes, and the only thing that is supposed to deprive it of the qualities of such paper is the appearance, in one corner of the face of the note, of the type or emblem of what is said to be the seal of the corporation. There is no statement or declaration in any ⁴⁶⁴ part of the note that it was, or was designed to be, executed under the corporate seal. What is alleged to be the seal consists simply of an emblem or