Elliott v. Smitherman

• Decision Date: 30 June 1837
• Citation: 19 N.C. 338
• Court: North Carolina Supreme Court
• Parties: HENRY B. ELLIOTT v. NOAH SMITHERMAN et al. Adm'rs of SAMUEL SMITHERMAN.

19 N.C. 338

HENRY B. ELLIOTT

v.NOAH SMITHERMAN et al. Adm'rs of SAMUEL SMITHERMAN.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1837.

1. A memorandum reciting the assignment of a promissory note, and engaging to pay, on demand, a stipulated price therefor, is a negotiable security; and proof that the note, in consideration of which it was made, was a forgery, cannot be admitted against an assignee for value, who received it before its dishonor.

2. An endorsement of a note to a bona fide endorsee, made by the payee in a fictitious name, in which it was made to him, is valid, although the name was assumed for a fraudulent purpose.

Assumpsit brought by the plaintiff as assignee, upon the following instrument, to-wit:

"This 27 April, 1835. Then received of William Long one note on Cornelius Shields and William Carr, for three hundred and fifty dollars, which I promise to give him two hundred and sixty four dollars twenty-five cents; and I have paid him sixty-four dollars twenty-five cents; and the two hundred I promise to pay him, the said Long, whenever he calls on me for it.—SAMUEL SMITHEEMAN."

Which was endorsed as follows: "30 April, 1835. I assign the within note to Henry B. Elliott, value rec'd.

WM. LONG."

The defendants pleaded the "general issue," and specially that there had been no assignment of the note. Upon the trial at Randolph, on the last Circuit, before Dick, J., the plaintiff having proved the execution of the instrument, the endorsement to him by the payee, and a demand after the endorsement but before suit, the defendant objected, that the note was not negotiable; and moved that the plaintiff be nonsuited; which was refused. The defendants then offered to prove, that the note set forth as the note of Cornelius Shields and William Carr, was a forgery, and that, therefore, there was no consideration to the maker of the note declared on; but the Court rejected the evidence. The defendants further offered to prove that the person who signed the endorsement, and to whom the note was made payable by the name of William Long, was not in fact named William Long, but had assumed that name with a fraudulent intent to defraud the intestate, or the plaintiff, or some other person, and that, therefore, the endorsement was a forgery: but the Court rejected this evidence also, and charged the jury, that the instrument declared on, was a negotiable note; and that if they believed it was executed by the defendants' intestate to a man calling himself William Long, and the same man endorsed it by the same name to the plaintiff, the latter had a right to recover; and this, although the endorser was not in fact named William Long, but had fraudulently assumed that name for the purpose of defrauding the maker, or the assignee, or any other person. Under these

instructions a verdict was rendered for the plaintiff; and the defendant appealed.

DANIEL, Judge: The first objection taken by the defendant to the charge of the Judge, is, that the instrument offered in evidence by the plaintiff, was not a negotiable note. We think that the instrument ...