Jones v. Evans
Before: Kerrigan
Synopsis
Action on Notes Against Maker—Alleged Indorsement by Corporation Payee Before Maturity—Evidence.—In an action on notes indorsed to plaintiff before maturity by an alleged corporation payee, brought against the maker, it is not necessary for the plaintiff to prove the corporate existence of Ms indorser.
Id.—Authority of Vice-president of Sewing Machine Company— Requested Indorsement by Plaintiff—Discount—Estoppel.— Where the notes were indorsed by the defendant sewing machine company by its vice-president, at whose request plaintiff indorsed the notes, which were discounted for the benefit of the sewing machine company, whether it be a corporation or not, it is estopped to deny the authority of its vice-president to indorse the notes, and where the maker failed to pay the note, the plaintiff, who was compelled to take them up, may enforce them against the maker.
Id.—Pledge of Securities to Plaintiff—Eight of Personal Action Against Maker.—The fact the sewing machine company pledged securities to the plaintiff cannot affect his right of personal action against the maker, though the collateral securities are still held, in the absence of any statute or stipulation to the contrary.
Id.—Want of Consideration—Indorsement Before Maturity for Value — Presumption — Proof — Striking Out Evidence. — As against evidence of want of consideration by the maker, the presumption is that the indorsement to plaintiff was before maturity and for value, and where the plaintiff so testified, the evidence of the maker was properly stricken out.
KERRIGAN, J.
This is an action on two promissory notes, made by J. W. Evans, payable to the order of the Domestic Sewing Machine Company. That company, before maturity, indorsed these notes, and delivered them to plaintiff. Thereafter, and before maturity, both notes were indorsed by plaintiff and discounted at certain banks. Defendants failed to meet these notes when they fell due. They were duly protested, and the plaintiff was compelled to pay the amounts due thereon. Defendants failed to reimburse plaintiff for such payment, and this action was brought. A trial was had only against the defendant Evans. Process was not served on the other defendant. The cause was tried by the court, sitting without a jury, and judgment was entered in favor of plaintiff. This appeal is from the judgment entered against defendant Evans, and from the order denying Ms motion for a new trial.
I. It is alleged in the complaint in the usual form that the Domestic Sewing Machine Company was a corporation. Appellant urges that there is no evidence that the company ever organized, or acted as a corporation. As we have seen, this is an action against the defendant Evans, the maker of the notes, and so far as Ms liability on these notes is concerned
[90]
the corporate existence of the defendant Domestic Sewing Machine Company is absolutely immaterial. In other words, a perfect cause of action in favor of respondent as against the appellant Evans is set forth in the complaint without regard to the allegation concerning the corporate capacity of the defendant Domestic Sewing Machine Company.
(Crocker-Woolworth Nat. Bank
v.
Carle, 133
Cal. 409, [65 Pac. 951].)
2. The indorsement on each note reads: “Domestic Sewing Machine Company by David Blake, Vice-President. ’ ’ Appellant asserts that there is no showing that David Blake had authority to make these indorsements. The evidence discloses that both notes were indorsed by respondent at the request of David Blake; that after being so indorsed they were discounted, and all moneys received by reason of such discounting were transmitted to the Domestic Sewing Machine Company and received by it, or else paid out under specific directions in discharging some of its obligations. Again, as part of his own case, appellant read in evidence a portion of the deposition of respondent, wherein he testified that he had an agreement with the Domestic Sewing Machine Company, in which it agreed to pledge with him certain assets of the company to secure him from liability for indorsing, among others, the notes involved herein. This agreement was signed “Domestic Sewing Machine Company by David Blake, Vice-President. ” The evidence further shows that, pursuant to this agreement, the Domestic Sewing Machine Company did deliver to respondent some of its assets and securities. Whether it was a copartnership, corporation or unincorporated association, it accepted and retained the benefits of the indorsement of its name upon the notes by David Blake, vice-president, and upon the faith of these indorsements it procured the indorsement of the respondent. According to well-established principles of law it could not accept the benefits derived from the indorsement of said notes by Blake, and at the same time repudiate his authority to make such indorsement.
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