MCMASTER'S COMMERCIAL DECISOINS
FROM THE REPORTS OF THE HIGHEST COURTS OF THE SEVERAL STATËS.
EXAMINER N. Y. STATE BANK DEPARTMENT
The drawee of a bank check cannot be held liable on a contract of ac- ceptance not a part of the bill unless there is an absolute promise to pay on the part of the drawee. So held by Kansas Supreme Court. Such a promise not contained in telegraphic response "J. D.'s check is good for sum named." 87a, No. 947, p. 67.
D., with other citizens of the town of Gory, made a voluntary subscrip- tion to procure the extension of a railroad to that town. The sub- scription had not been definitely ac- cepted by the railroad company. The company brought suit against D. for the amount of his subscrip- tion. Held, that it had not signified its acceptance and hence could not
The Negotiable Instruments Laws of the State of Colorado (Laws 1897, c. 64, sec. 126) define a check as being a bill of exchange and is sub- ject to the law applicable to a bill of exchange. Held, that a bank named as the drawee in a check is not liable to the holder until it ac- cepts or promises to pay it in writ- ing. 58a.
ACCOMMODATION INDORSER: A bank was the holder of a note indorsed by defendant. In making renewals of the note the makers would sign a blank note and de- fendant indorse same and the bank afterward fill in the proper terms on the face of the paper. Held,
ACCOMMODATION INDORSER – Continued.
that defendant had received valuable consideration and was not a mere accommodation indorser. 109a. An accommodation indorser who is compelled to pay a note may re- cover from the maker and payees for whose accommodation he in- dorsed it, and the payee cannot counterclaim an indebtedness of the accommodation indorser to the maker existing at the maturity of the note. 202a.
ACCOMMODATION PAPER:
A corporation drew drafts on a firm, one of the members of which was The its principal stockholder. drafts were accepted by this firm and discounted through note brokers. The drafts were held to be accommodation paper and unen- forceable in the hands of purchasers with notice. A company engaged in the manufacture of tubing and webbing has no implied power to become an accommodation drawer of a draft. The fact that a draft is presented for discount by the ac- ceptors is notice that it is accommo- dation paper. No. 984, p. 234.
Neither partner could complain that the other had not sooner called for an accounting where a partnership transaction had extended over a long term of years and was not terminated when suit was brought.
Limitations do not begin to run in favor of a trustee who has de- frauded until discovery of the fraud, or in case of a trustee who be- comes a trustee without formality of a written instrument until he re- pudiates the trust. 286a.
The holder of a negotiable promissory note is presumed to be such bona fide and for value; if either fact is negative by proof, the defendants are let in to all their defenses. 67a. The payee of a protested note cannot recover of the indorser who did not receive notice of protest until three months thereafter; the notice hav- ing been addressed to him at a place other than his last known residence. 83a.
ADMINISTRATORS:
In an action on a note payable to a bank it was alleged that another payee was intended and the bank put in by inadvertence. It was held that the burden of proof was on the plaintiff, who was the indorsee, to show he had good title to the note and that another payee was intended than the one whose name appeared. Action was against the administra- tor of the surety, whose name was signed below that of the maker, who was not served. 151a, No. 966, p. 140.
By the law of the State of Missouri, held in case of Hockaday v. Lynn et al., that the act of adoption brings the adopted child into re- lationship only with the adoption parent, and such child cannot inherit from the brother of her deceased adoptive father the share which the adoptive father would have taken from his brother. 119a.
AGENCY OF PARTNER:
Where one partner signs the name of a trading firm to a note as an ac- commodation without the authority of the other members of the co- partnership, a holder without notice before maturity may recover against the firm. The fact that the firm name is signed as second maker is no notice that the firm is surety. 234a, No. 987, p. 267.
A parol assignment by a man in busi- ness of the accounts and bills re- ceivable which he should acquire in the course of such business to secure a person for becoming his indorser to enable him to raise money for use in the business creates a valid lien as against the assignor's trustee in bankruptcy where the assignment was made in good faith, although no notice was given to creditors, and the notes and accounts remained in the possession of the assignor until his bankruptcy. 278a.
In an action on a note payable to a bank it was alleged that another payee was intended and the bank put in by inadvertence. It was held that the burden of proof was on the plaintiff, who was the indorsee, to show he had good title to the note and that another payee was intended than the one whose name appeared. Action was against the administra- tor of the surety whose name was signed below that of the maker, who was not served 151a, No. 966, p. 140.
Where A. purchased real estate en- cumbered by a mortgage securing payment of a non-negotiable note, and the records showed no assign- ment of the securities, and he paid the same to the agent of the payee named in the note, the payment was a good defense to an action to fore- close the mortgage. 9a, No. 938, p.
The Law Merchant: A law or cus- tom of merchants in relation to commercial paper which was en- grafted into the statute law of Eng-
land by the "Statute of Anne" passed by Parliament in 1705. This law is often referred to in the de- cisions of our courts. 84a.
ASSUMPTION OF DEBT OF AN- OTHER:
In a case where a note was indorsed by a bank to its president for col- lection and the president reindorsed it to bank and the same was after- ward transferred to the city by the bank without erasing its indorse- ment, it was held that the bank was liable under its indorsement and parties who had assumed liabilities of bank under contract were liable to the city also. 157a, No. 969, p. 154.
An attachment in an action by a non- resident of the debt of a foreign corporation to a nonresident under a contract made out of the State for services to be performed out of the State is bad, under the rule laid down by the Code Civ. Proc. (N. Y.). Where the levy of at- tachment of a debt is clearly bad and cannot be cured it will be so declared and the levy vacated on motion. 26a.
It was held that a bank by discounting a draft attached to an order on a carrier for delivery as authorized by a bill of lading became the owner of fruit for which the draft was drawn as against the creditors of the purchaser who rejected the fruit, the fruit being subsequently resold. 149a, No. 965, p. 137. It was held, where an an attorney de- posits funds of his clients, atty.," the bank having no further knowledge in regard to the account may pay the money on check of the attorney and where an attachment is levied against the fund, it is pro- tected. The money does not, how- ever, belong to the attorney and cannot be attached for his debts. 221a, No. 980, p. 216.
Although the indorser of note may have been indebted to the indorsee and had a settlement, at which time the indorsee kept the note in suit, it was held the indorsee might sue the indorser on the note. At- torney's fees are not recoverable unless alleged in the plaintiff's pe- tition. 138a, No. 961, p. 127.
AUTHORITY OF CORPORATION'S OFFICERS:
In an action against a bank for ac- cepting check of a corporation which on its face showed the officers of the corporation had no authority to issue it, evidence examined and held to show the corporation had ac- cepted in payment a note of a third party and other securities, whereby a novation is affected and the cor- poration can look only to the sub- stituted debtor and securities. 211a, No. 975, p. 195.
A note signed by the vice-president and treasurer of a corporation will not bind the corporation unless the said official has authority to exe- cute notes by charter, by-laws, or resolution of the corporation. The party suing must prove the au- thority. 215a, No. 977, p. 202.
AUTHORITY TO EXECUTE:
A note signed "The Kansas City and Olathe Electric Ry. Co., William Lackman, President, D. B. Johnson Secretary," held to be the note of the corporation, not of the individ- uals. Burden of proof on the plaintiff to show that the defendant intended it as their individual note. 148a, No. 964, p. 135.
It is not sufficient to show that a note was taken by an indorsee under circumstances which might excite suspicion, but it must be shown that the indorsee took the paper under circumstances tending to show bad faith or dishonesty. 163a.
BANKS AND BANKING:
The executive officers of a national bank may legitimately borrow money for the bank's use, in the usual course of business, without special authority from their board of directors. 61a.
Where the cashier of a bank assisted a number of persons who had con- spired together to defraud one H., a stranger, by inducing him to bet on a foot race, the result of which had been fixed in advance by the parties, by allowing the use of the bank for the transfer of money and to give an appearance of respect- ability to the race. Held, that the bank as well as the cashier is liable.
« PreviousContinue » |