Falk v. Moebs

CourtUnited States Supreme Court
Writing for the CourtLAMAR
Citation127 U.S. 597,8 S.Ct. 1319,32 L.Ed. 266
Decision Date14 May 1888
PartiesFALK et al. v. MOEBS

8 S.Ct. 1319
127 U.S. 597
32 L.Ed. 266
FALK et al.
v.
MOEBS.
May 14, 1888.

The plaintiffs in error, Gustav Falk and Arnold Falk, who are citizens of the state of New York, brought suit in the circuit court of the United States for the Eastern district of Michigan against the defendant in error, George Moebs, upon nine certain promissory notes made by the Peninsular Cigar Company of Detroit, upon which they sought to charge Moebs personally as indorser. All of the notes were in form like the following, differing only as to amounts and the time of payment: '$1,061.24. DETR IT, MICH., August 4, 1880. Four (4) months after date we promise to pay to the order of Geo. Moebs, sec. & treas., ten hundred sixty-one & 24-100 dollars, at Merchants' & Manufacturers' National Bank, value received. PENINSULAR CIGAR Co., GEO. MOEBS, Sec. & Treas.' Indorsed: 'GEO. MOEBS, Sec. & Treas.' The first count of plaintiffs' declaration was special, and alleged, in substance, that on July 6, 1880, defendant was the secretary and treasurer of a body corporate known as the

Page 598

Peninsular Cigar Company, then engaged in the business of manufacturing, buying, and selling cigars and tobacco in the city of Detroit; that plaintiffs were then doing business as tobacco merchants in New York city; that the defendant, as secretary and treasurer of said Peninsular Cigar Company, applied to plaintiffs for the purchase of certain merchandise, and offered in payment therefor the notes of said Peninsular Cigar Company; and it was then agreed between the plaintiffs and defendant that plaintiffs were thereafter to sell and deliver the merchandise so applied for, and any other goods which defendant, in behalf of said company, might thereafter apply for, and that in payment therefor the defendant should execute and deliver to the plaintiffs the notes of the said Peninsular Cigar Company, payable to the order of the said defendant, and by him personally indorsed to said plaintiffs; that said defendant thereafter ordered from the plaintiffs certain merchandise of the value of $7,449, and, in accordance with said agreement and in payment for said merchandise, the defendant, upon the several dates indicated and specified in the several promissory notes heretofore mentioned, and with the intent and design of binding, charging, and obligating himself as an indorser upon said notes with the liability of an indorser as defined by the law-merchant, made, executed, and delivered to the plaintiffs said nine promissory notes. To this special count were added the common counts in assumpsit, with a notice thereunder written that the plaintiffs would, under the money counts, give in evidence nine certain promissory notes, copies of which were set out, and in which notice it was stated that said notes would constitute the sole bill of particulars of the plaintiffs' demand. To the special count in the declaration the defendant demurred, and to the common counts he pleaded the general issue. The demurrer to the special count was sustained, and the plaintiffs at the next term of said court brought the cause on for trial upon the issue framed upon the common counts in the declaration. Upon the trial, which was had before said court and a jury, the plaintiffs f fered in evidence the notes referred to, and also the deposition of Arnold Falk, one of

Page 599

said plaintiffs, which it was claimed tended to show that it was the intention of the defendant to bind himself personally in making the said indorsement upon said notes; but this evidence was excluded on the ground that it was not evidence of the personal liability of the defendant. Upon the ruling of the court excluding this evidence error is alleged.

Levi T. Griffin and C. E. Warner, for plaintiffs in error. [600]

Don M. Dickinson and E. G. Stevenson, for defendant in error.

LAMAR, J.

Error is not assigned in regard to the judgment of the court sustaining the demurrer to the special count of plaintiffs' declaration in the original assignment of errors annexed to and accompanying the writ of error. It is, however, assigned for error in the brief filed in this court by plaintiffs in error

Page 601

that such judgment is erroneous, and oral argument has been addressed to us on that point.

For the purposes of this decision we do not deem it necessary to review seriatim all the errors assigned. In our opinion, the first question to be considered is, does the indorsement of the notes involved in this case, in terms, purport to be that of the Peninsular Cigar Company, or does it purport to be the personal indorsement of Moebs? In other words, can it be clearly ascertained from these instruments themselves who is, in law, the indorser of them? Is the indorsement plain and clear, or is it ambiguous? It is contended on behalf of the plaintiffs in error that the indorsement, in terms, is that of Moebs personally; or, at most, that it is ambiguous, and may be construed to be either that of the Peninular Cigar Company, or the personal indorsement of Moebs. They, therefore, contend that the correspondence leading up to the making of these notes (and which is embraced in the deposition of Arnold Falk, before mentioned) should be considered and read with the notes and the indorsement upon them, not so much for the purpose of varying the terms of the contract embraced in the notes, as for the purpose of elucidating that contract, and for the purpose of showing who was in fact the indorser; not for the purpose of showing what is the true construction of the language of the contracting party, but who is the contracting party. On the other hand, it is insisted with equal earnesteness by the defendant in error that the indorsement is unambiguous, and is in plain terms that of the Peninsular Cigar Company, and is not the personal indorsement of Moebs. He,...

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44 practice notes
  • Schuling v. Ervin, No. 31356.
    • United States
    • United States State Supreme Court of Iowa
    • December 14, 1918
    ...on this subject, says it is “not easy to lay down any general rule which would be in harmony with all of them.” Falk v. Moebs, 127 U. S. 597, 8 Sup. Ct. 1319, 32 L. Ed. 266. The result of this condition has been that many, and perhaps a majority, of the courts, after a more or less vain att......
  • Schuling v. Ervin, 31356
    • United States
    • United States State Supreme Court of Iowa
    • December 14, 1918
    ...on this subject, says it is "not easy to lay down any general rule which would be in harmony with all of them." Falk v. Moebs, 127 U.S. 597, 32 L.Ed. 266, 8 S.Ct. 1319. The result of this condition [185 Iowa 12] has been that many, and perhaps a majority, of the courts, after a more or less......
  • Page v. Ford
    • United States
    • Supreme Court of Oregon
    • April 29, 1913
    ...Northampton Bank v. Pepoon, 11 Mass. 288; Lay v. Austin, 25 Fla. 933, 7 So. 143; Elwell v. Dodge, 33 Barb. (N.Y.) 336; Falk v. Moebs, 127 U.S. 597, 8 Sup.Ct. 1319, 32 L.Ed. 266. The indorsement of the note without recourse did not render it nonnegotiable. L.O.L. § 5871. There is no breach o......
  • Henry Blair v. City of Chicago No 331 North Chicago City Railway Company v. Henry Blair No 332 City of Chicago v. John Fetzer No 333 Henry Blair v. City of Chicago No 334 Chicago West Division Railway Company v. Henry Blair No 335 City of Chicago v. John Fetzer No 336, Nos. 331
    • United States
    • United States Supreme Court
    • April 2, 1906
    ...furnished directly to the defendants by the Guaranty Trust Company, and that company was the first taker of the notes. In Falk v. Moebs, 127 U. S. 597, 32 L. ed. 266, 8 Sup. Ct. Rep. 1319, it was held that notes made in this form, payable to the treasurer, indorsed before delivery by him, a......
  • Request a trial to view additional results
44 cases
  • Schuling v. Ervin, No. 31356.
    • United States
    • United States State Supreme Court of Iowa
    • December 14, 1918
    ...on this subject, says it is “not easy to lay down any general rule which would be in harmony with all of them.” Falk v. Moebs, 127 U. S. 597, 8 Sup. Ct. 1319, 32 L. Ed. 266. The result of this condition has been that many, and perhaps a majority, of the courts, after a more or less vain att......
  • Schuling v. Ervin, 31356
    • United States
    • United States State Supreme Court of Iowa
    • December 14, 1918
    ...on this subject, says it is "not easy to lay down any general rule which would be in harmony with all of them." Falk v. Moebs, 127 U.S. 597, 32 L.Ed. 266, 8 S.Ct. 1319. The result of this condition [185 Iowa 12] has been that many, and perhaps a majority, of the courts, after a more or less......
  • Page v. Ford
    • United States
    • Supreme Court of Oregon
    • April 29, 1913
    ...Northampton Bank v. Pepoon, 11 Mass. 288; Lay v. Austin, 25 Fla. 933, 7 So. 143; Elwell v. Dodge, 33 Barb. (N.Y.) 336; Falk v. Moebs, 127 U.S. 597, 8 Sup.Ct. 1319, 32 L.Ed. 266. The indorsement of the note without recourse did not render it nonnegotiable. L.O.L. § 5871. There is no breach o......
  • Henry Blair v. City of Chicago No 331 North Chicago City Railway Company v. Henry Blair No 332 City of Chicago v. John Fetzer No 333 Henry Blair v. City of Chicago No 334 Chicago West Division Railway Company v. Henry Blair No 335 City of Chicago v. John Fetzer No 336, Nos. 331
    • United States
    • United States Supreme Court
    • April 2, 1906
    ...furnished directly to the defendants by the Guaranty Trust Company, and that company was the first taker of the notes. In Falk v. Moebs, 127 U. S. 597, 32 L. ed. 266, 8 Sup. Ct. Rep. 1319, it was held that notes made in this form, payable to the treasurer, indorsed before delivery by him, a......
  • Request a trial to view additional results

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