Falk v. Moebs

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

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 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 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 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, therefore, contends that the evidence contained in the said deposition of Arnold Falk was rightfully rejected; and that to have admitted it as legal evidence would have been in effect to allow a contract in writing to be changed and modified, in an action at law, by extrinsic evidence, contrary to the rule of law which forbids such change or modification. Upon this question it may be said that the authorities are not entirely harmonious. Indeed, there is much conflict among them. We do not find it essential, or even useful to discuss minutely every authority cited by the respective parties to this controversy, some of which are believed to have little relevancy to the subject under consideration. A discussion of a few of the leading ones which are believed to embody all the principles involved in this case, and to control it, will perhaps be sufficient. Hitchcock v. Buchanan, 105 U. S. 416, is a case much in point on this subject. Indeed, it was considered by the learned district jedge below (who, nevertheless, disapproved of the ruling therein, and dissented from the opinion of the court below) as practically controlling this case adversely to the plaintiffs in error. In that case a bill of exchange, as follows: '$5,477.13. OFFICE OF BELLEVILLE NAIL MILL CO., BELLEVILLE, ILL., December 15, 1875. Four months after date, pay to the order of John Stevens, Jr., cashier, fifty-four hundred and seventy-seven 13-100 dollars, value received, and charge same to account of Belleville Nail Mill Co. WM. C. BUCHANAN, Pres't. JAMES C. WAUGH, Sec'y. To J. H. Pieper, Treas., Belleville, Illinois,'—was held to be the bill of the company, and not that of the individual signers; and it was also held that a declaration thereon against the latter as drawers, setting forth the instrument, and alleging it to be their bill of exchange, was bad on demurrer, in Carpenter v. Farnsworth, 106 Mass. 561, a check drawn on the Boston National Bank, a copy of which is as follows: '$19.20. AEtna Mills. BOSTON NATIONAL BANK, BOSTON, September 9, 1879. Pay to L. W. Chamberlain or J. E. Carpenter or order nineteen and twenty one-hundredths dollars. I. D. FARNSWORTH, Treasurer,'—was held to be the check of the AEtna Mills, and therefore binding upon the corporation, and not the treasurer, Farnsworth, personally.

In Sayre v. Nichols, 7 Cal. 535, a draft, of which the following is a copy: '$3,000. No. 2,123. ADAMS & Co.'s EXPRESS AND BANKING HOUSE, MORMON ISLAND, February 21, 1855. Pay to A. G. Sayre, or order, three thousand dollars, value received, and charge same to account of this office. C. P. NICHOLS, per G. W. COREY, Agts. To Messrs. Adams & Co., Sacramento.' Indorsed: 'A. G. SAYRE, G. W. C.,'—was held to be the draft of Adams & Co., and...

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  • Schuling v. Ervin
    • United States
    • Iowa Supreme Court
    • 14 Diciembre 1918
    ... ... authorities," 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, ... ...
  • Schuling v. Ervin
    • United States
    • Iowa Supreme Court
    • 14 Diciembre 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......
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    ...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, are the not......
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