Himmelmann v. Hotaling

Speague J., delivered tbe opinion of the Court:

[113]This was an action by an assignee against the drawer of of two checks, one for $500 and one for $1,200, payable to Charles Hanson or bearer. The checks were both drawn by defendant, and bore date and were delivered to Hanson on the 16th of December, 1868, for money which defendant held, belonging to Hanson. On the evening of the same day, after receiving the checks, Hanson lost them at a game of “ faro,” to one Briggs, to whom he immediately delivered them. On the next morning, December 17th, as soon as the banking office of the drawee was open, Briggs presented the checks for payment, which was refused, and Briggs was then notified that payment had been stopped. Briggs then immediately took the checks to his attorney and requested him to dispose of them, telling him at the same time how he, Briggs, acquired them, and that he had presented them fpr payment to the drawee, and that payment was refused. The attorney, on the same day, sold and delivered the checks to plaintiff for full value, - who, on the same day, presented them to the drawee for payment, which was refused, and plaintiff immediately afterward, on the same day, gave due notice of presentment by him, and non-payment by the drawee to the defendant, and' then, at the same time, demanded payment of him which was refused. At the time the attorney of Briggs sold and delivered the checks to plaintiff, and received full value for the same from him, no statement or intimation was made to plaintiff how the checks had been acquired, or that payment had been demanded on the checks and refused, and no evidence was given or offered in behalf of defendant tending to establish that plaintiff had any knowledge or intimation of the manner in which, or from whom, the checks had been acquired by the attorney of Briggs, or that the same had been presented and payment refused. The plaintiff was sworn as a witness in his own behalf, and offered his testimony, as follows : “ That at the time he obtained the checks he received them without any notice that they had been lost at ‘ faro’ —without any notice that they had before then been presented for payment. That he received them from Lloyd [114](the attorney) as so much money, for which he gave his note for the like amount in payment, and had no notice of any matter in connection with the checks which might tend to impeach or invalidate them, or lead him to suspect that there was any defence against them existing in favor of Hanson or the defendant.” To this offered evidence counsel for defendant objected that the proposed evidence was immaterial, upon the ground that the proof in the case, showing without any contradiction that the checks had been presented by Briggs for payment, and payment thereof refused by the drawee and drawer before the transfer of them to plaintiff, the plaintiff could not recover them against the defendant, admitting him to have received them in good faith, for a valuable consideration, and without notice.