Nat. Bk. of Washington v. Mordecai

Pattison, J., delivered the opinion of the Court. The action in this case was brought upon a promissory note, given by the appellee company to Henry Mordeeai and endorsed by him. and Herbert Q. Mordeeai to the appellant baiilc, dated May 19th, 1916, for the sum of two thousand seven hundred and forty-eight dollar’s and fifty-two cents ($2,748.52), payable thirty days thereafter. With this note was deposited and pledged, aa collateral security for its payment, a certificate for three hundred and fifty (350) shares of the capital stock of the Monumental Cigar Company. In addition to the pleas of never indebted as alleged and never promised as alleged, the defendants pleaded: (1) “That after the alleged claim accrued and before suit, the plaintiff, for value received released the defendants therefrom,” and (2) “That before this action they satisfied and discharged the plaintiff’s claim by payment.” The trial of the case resulted in a verdict and judgment for the defendants and from that judgment this appeal is taken.

There are four exceptions found in the record. Three upon the rulings of the ‘Court upon the evidence and one to its rulings in refusing the three prayers of the plaintiffs. ⁴²¹ The first and second of these prayers ash the Court in substance to instruct the jury that there was no evidence, legally sufficient, to go to the jury tending to show a novation. This is the main question presented by this appeal. The pleas were filed hy Henry Mordeeai and Herbert Q. Mordecai as partners, trading as the Southern Oigar Company, in which it is stated that the company was erroneously described in the declaration as a corp oration; and among the docket entries is found an agreement of counsel dictated hy the Court that “this suit is not against the corporation hut is intended against Henry Mordeeai and Herbert Q'.

Mordecai, whose business is that of the Southern Cigar Company, and that the jury have been properly sworn as to the pleadings.” The record discloses that the note sued upon was signed and endorsed, as stated above, and it, as well as the collateral security deposited with it, was in the possession of the plaintiffs at the institution of this suit. This note was not paid at maturity and the failure of the defendants to pay it resulted in a number of conferences between Mr. Harper, president of the appellant hank, and Mr. Henry Mordecai, in which different means and methods were suggested and discussed hy which the note was to he paid. It seems that Benjamin Mordecai, late of South Carolina, father of Henry Mordecai, had a claim against the Government'of the United States for certain cotton taken from him by the Federal Government several months after the close of the War between the States, and that H'enry Mordecai, as one of those entitled thereto, had, presented a claim therefor to the Congress of the United States, which claim at that time was in the hands of the Committee on War Claims in the House of Representatives. As stated by Mr. Harper, Mr. Henry Mordecai being unable to meet the obligation at maturity he agreed “to sell his cotton claim and pay his creditors from the proceeds that came from the sale of the claim, 90% on the dollar.” The bank assented to this proposition, provided, it was paid by ⁴²² October 1st, 1916.

It was not paid at that time, and as expressed by Mr. Harper, “the proposition went off.” The defendants were also indebted to the State Bank of Maryland, and in an. effort to adjust or settle its claim, Mr. Henry Mordeeai states that he at the request of Mr. Oloud, its president, called at the bank, and after discussing with him the settlement of the bank’s claim against him, he agreed, upon being asked by Mr. Oloud, to make an assignment of his cotton claim to his creditors, “provided the assignment would release witness from all obligation.” It was then süggested by Mr. Oloud, that he and Mr. J. Püxdon Wright he appointed trustees., with the consent of the creditors, to carry such agreement into effect. The consent of the creditors, including the appellant hank was obtained and in pursuance of the understanding or agreement so made, an assignment of said claim against the Government was executed, under seal not only by Henry Mordeeai, hut also by his children, who, as the assignment states, will be entitled to their proportionate share of said claim, in case they survive the father. The assignment contains the following provisions: “Whereas, the undersigned, Henry Mordeeai, individually, and Herbert Q. Mordeeai, individually, and Henry Mordeeai and Herbert Q. Mordeeai, trading as the Southern Cigar Co., are' at this time jointly indebted to the District National Bank of Washington, D. 0., in the sum of $2,820.49; and “Whereas, the said District National Bank has agreed to accept an assignment of so much of the interest of the said Henry Mordeeai or Corinne Mordeeai, his wife, (Mrs.) Alma L. Walker, (Mrs.) Maud M. Cornelius, Walter C. Mordeeai, and Herbert Q. Mordecai, Ms children, should they succeed his interest in said claim against the Government of the Hnited States, in full satisfaction of their claim of $2,820.49 against the said Henry Mordeeai and Herbert Q. Mordecai, and individally and trading as the Southern Cigar Co. ⁴²³ “Now, therefore, this agreement witnesseth, That for and in consideration of one dollar ($1), this day-paid by District National Bank to the said Henry Mordeeai, Oorinne Mordecai, his wife, and (Mrs.) Alma L. Walker, (Mrs.) Maud M. Cornelius, Walter C. Mordecai, and Herbert Q. Mordecai, his children, the receipt whereof is hereby admitted, the said Henry Mordecai, Oorinne Mordecai, his wife, (Mrs.) Alma L. Walker, (Mrs.) Maud M. Cornelius, Walter C. Mordecai, and Herbert Q. Mordecai, his children, do hereby jointly and severally assign, transfer, and set over to the said District National Bank their and each of their joint, several and respective interests in the said claim filed against the Government of the United States, as hereinbefore set forth, to the extent of $2,820.49, with interest at six per cent, per annum, in full payment and satisfaction of an indebtedness of $2,820.49 owing by Henry Mordecai and Herbert Q. Mordeeai, individually and trading as the Southern Cigar Company, to the said District National Bank. “And all the undersigned do hereby direct, empower and authorize the Treasurer of the United States, and do also direct, empower and authorize any attorney who is representing the interests of all or any of the undersigned in said claim, and do further direct, empower and authorize any person whatsoever who in any manner may have any control of said claim or the funds arising therefrom, to pay to the said District National Bank the sum of $2,820.49, with interest from the date hereof at the rate of 6% per annum, out of all funds of monies which may be paid by the Government of the United States to the undersigned or any of them in settlement of their claim against the United States, this assignment being their full authority so to do, and a receipt written upon this assignment by the said District National Bank or its personal representatives showing the receipt of said sum, will be a full release and receipt from all the undersigned to the Government of the United States or such ⁴²⁴ other party as may pay the said sum to District National Bank or its personal representatives.” The above assignment, executed on the 31st day of January, 1917, was on February 7th, 1917, sent to the District National Bank, enclosed in the following letter to> it from J. Purdon Wright: “Mr. W. W. Cloud, President of the State Bank of Maryland, and myself have been endeavoring for some time to get the affairs of Mr. Henry Mordecai somewhat straightened out and obtain assignments for his creditors from him and his children of their interest in a certain cotton claim made by Mr. Mordecai against the Government of the United States. We have been successful in getting an assignment for each creditor to the extent of his claim against Mr. Mordecai and we are herewith enclosing the assignment made to you.

Kindly acknowledge receipt of same. “In addition to this assignment, we hope to get a demand note from Mr. Mordecai endorsed by his children, payable to us as Trustees for creditors holding assignments against this cotton claim, as per list lodged with us and which we will hold, and under which we will, if the claim is realized, be in a stronger position to collect the money and pay the various creditors holding assignments.” In response to the above letter, E. S. Wolfe, cashier of the District National Bank, wtrote Mr. Wright on February 8th, 1917, saying: “Receipt is acknowledged of yours of the 7th, enclosing assignment executed by Henry Mordecai, and others, in connection with our claim against him. “We understand that, in addition to this, you are endeavoring to secure a demand note, endorsed by his children, which is to be covered by assignment, and this in turn held by you for our benefit.? Mr. Wright having in the meantime received from Henry Mordecai and his children the demand note, mentioned in his ⁴²⁵ letter of Eebruary 7th. to the District National Bank, wrote said bank on March 22nd, 1917, saying: “When I sent you on Eehruary 7th, 1917, the assignment from Henry Mordeeai and his children of their interests in a certain claim made hy Mr. Mordecai against