Poorman v. D. O. Mills & Co.

California Supreme Court Jul 1, 1870 No. No. 1,905Published

Before: Sprague

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Holding. The court held that a negotiable certificate of deposit transferred to a bona fide holder for value before maturity is not subject to the maker's defenses of mistake or want of consideration, and that the written amount in the body of the instrument controls over conflicting figures in the margin.

Issues

Whether a certificate of deposit is a negotiable instrument subject to the rules governing promissory notes.
Whether a discrepancy between the written amount and the marginal figures creates a patent ambiguity that allows for extrinsic evidence.
Whether a certificate of deposit transferred on the day of its issuance is presumed to be dishonored.
Whether the transfer of the certificate was void under the state's anti-gaming statute.

Disposition. reversed

Quotations verified verbatim against the opinion

“The words written in the body of a certificate, bill or note, when plain, definite and certain, must control, without regard to the superscription in figures.”

“A negotiable bill or note, indorsed and transferred to a bona fide holder for value, without notice by the payee thereof, before maturity or dishonor, actual or constructive, is relieved of all equities existing between the drawer or maker”

Synopsis

Negotiable Instruments.—Ambiguity.—In a negotiable instrument a patent ambiguity cannot be helped by averment or evidence aliunde.

Idem.—The words written in the body of a certificate of deposit, hill or note, when plain, definite and certain, must control, without regard to the superscription in figures.

Idem—Mistake and Want of Consideration.—An alleged mistake and want of consideration in a negotiable note or bill will not avail the makers in a suit against them by a tona fide indorsee for value before maturity or dishonor, actual or constructive, or by any subsequent holder through such original indorsee.

Idem.—A negotiable note or hill indorsed and transferred to añonct fide holder for value, without notice, by the payee thereof before maturity or dishonor, actual or constructive, is relieved of all equities existing between the drawer or maker and the payee; and any subsequent assignee receives the same in like manner, relieved of all such equities.

Idem.—Dishonor.—A sight bill or note, payable on demand, is presumed to he dishonored after a reasonable time shall have elapsed after its date.

Idem.—What such reasonable time is, depends upon the circumstances of each case, and is a question of law to he determined by the Court.

Idem__A note on demand, indorsed or transferred during the business hours of the next day after its date, is within a reasonable time, and the holder protected as indorsee before maturity or presumptive dishonor.

Idem.—Act to Prohibit Gaming.—The indorsement and transfer of a note or hill in rooms occupied for gambling purposes, and in a gambling transaction, is not void under the “Act to prohibit gaming,” unless the consideration for such indorsement and transfer was money or other thing of value lost or won at any of the games prohibited by the statute.

Fraudulent Act—Liability for.—When one of two innocent parties must suffer loss by the fraudulent act of a third, he who enables such third party to occasion the loss must hear it.

Sprague, J., delivered the opinion of the Court, Temple, J., and Rhodes, C. J., concurring :

This is an action by an assignee against the makers of a certificate of deposit, for the sum of $1,500 in United States gold coin, which is set out in the complaint, as follows :

“$750. Bank of D. O. Mills & Co., )

“Sacramento, October 18, 1866. }

“George Rosenbaum has deposited in this bank $1,500, payable to himself or order, in United States gold coin, on return of this certificate properly indorsed.

“D. O. Mills & Co.”

This instrument possesses all the requisites of a negotiable promissory note, payable .on demand—and with respect to the questions involved in the suit, must be regarded and treated as s'uchi " "

. The answer substantially admits the execution of the certificate, as charged in the complaint; denies that the plain[350]tiff is the bona fide or legal owner or holder thereof; avers want of consideration for its issuance, exceeding the sum of $750; and that the words “fifteen hundred” were inserted and written in the body of the certificate by mistake and inadvertence, in place of the words “seven hundred and fifty, ” which were intended to be, and should have been, written thereon—of which mistake plaintiff had notice when he received the same; and further avers, that the certificate was issued for and on deposit of $750; and that the payee thereof received the same for and as a certificate of deposit for $750 only-—which sum defendants tendered to plaintiff on the presentation of the certificate; and further deny generally the allegations of the complaint. The case was tried by the Court without a jury; and, without making any finding of facts, the Court rendered judgment against defend""'""-ants for $750. Plaintiff, upon statement, moved for a new trial, which being denied, he appeals from the judgment and order denying a new trial. There is no conflict in the evidence as found in the record.

The certificate is to all intents and purposes a certificate for $1,500 in gold coin. The superscription on the upper left hand corner, in figures, is but a memorandum, and in no manner serves to vary, change, modify or control, the written words found in the body of the certificate, which distinctly specify the sum, for which the certificate is issued, to be $1,500. The most that can be claimed for this memorandum, in figures, is that its presence on the face of the certificate, serves to create a patent ambiguity; but this cannot be helped by averment, or evidence aliv.nde. The words written in the body of a certificate, bill or note, when plain, definite and certain, must control, without regard to the superscription in figures. (Chitty on Bills, 11 Am. from 9 Loud. ed. pp. 149-160; Story on Bills, Sec. 42; Story on Prom. Notes, Sec. 21; Saunderson v. Piper, 5 Bing. N, Cas. 425; Mears v. Graham, 8 Blackf. 144; Payne v. Clark, 19 Mo. 152.)

Poorman v. D. O. Mills & Co.

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