Johnston v. Wolf

JAMISON, J.,

pro tem.

This action was upon a trade acceptance drawn by the Brent Furniture Company in favor of defendant and indorsed by defendant to the Pacific National Bank before maturity, for value, who' took the same in good faith and became a holder in due course thereof.

This trade acceptance was drawn on December 8, 1925, for the sum of $680.75, was accepted by defendant and payment thereon was due on March 8, 1926.. While the said bank was the owner of said trade acceptance and holder in due course and prior to its maturity, it placed said instrument in the mail for transmittal to the Florence National Bank, at which said trade acceptance was payable. Said instrument was lost during its transmission by mail and never was found. After said loss the Pacific National Bank assigned its claim arising under and by virtue of said trade acceptance to plaintiff for collection after the maturity thereof; that prior to the maturity of the trade acceptance, but after its transfer to said bank, defendant paid same in full to said Brent Furniture Company.

Plaintiff had judgment, from which defendant appeals.

Appellant contends that the judgment should be reversed for the reasons that respondent’s cause of action is upon a chose in action and is therefore subject to all equities in favor of all prior parties; that the action is upon a claim arising under a trade acceptance which was assigned to respondent after maturity and without consideration and because the original trade acceptance was a non-negotiable instrument. In support of this last contention he cites

Westlake Mercantile Finance Corp.

v.

Merritt,

204 Cal. 673 [61 A. L. R. 811, 269 Pac. 620]. In that case the trade acceptance contained the words, “The obligation of the ac

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ceptor hereof arises out of the purchase of goods from the drawer, maturity being in conformity with original terms of purchase.” The Supreme Court there held that the words “maturity being in conformity with the original terms of purchase” rendered the date of maturity uncertain and dependent upon another contract and for this reason rendered it non-negotiable.