First Nat. Bank of Artesia v. Home Ins. Co.

• Decision Date: 01 February 1911
• Citation: 16 N.M. 66,113 P. 815
• Parties: FIRST NAT. BANK OF ARTESIAv.HOME INS. CO., NEW YORK.
• Court: New Mexico Supreme Court

16 N.M. 66

113 P. 815

FIRST NAT. BANK OF ARTESIA

v.HOME INS. CO., NEW YORK.

Supreme Court of the Territory of New Mexico.

Feb. 1, 1911.Rehearing Denied March 4, 1911.

Syllabus by the Court.

In an action brought to recover on a draft, the complaint alleged that the draft was drawn by an agent on his principal by authority of the principal, that the draft was presented, payment refused, and that same is still unpaid. Held, to be good on a demurrer for failure to state facts sufficient to constitute a cause of action, for the reason that “a draft drawn by an agent on his principal by authority of the principal is equivalent to a draft drawn by the principal himself, and need not be accepted by the drawee in order to bind it.”

By the provisions of section 130, c. 83, Laws 1907, known as the “Negotiable Instrument Act,” it is provided that where the drawer and drawee are the same person a draft may be treated as a promissory note, thus requiring no acceptance.”

By the provisions of section 12, c. 62, Laws 1901, every contract in writing imports consideration.

Appeal from District Court, Eddy County; before Justice William H. Pope.

Action by the First National Bank of Artesia against the Home Insurance Company, New York. Judgment for plaintiff, and defendant appeals. Affirmed.

By the provisions of section 12, Chapter 62, Laws 1901, every contract in writing imports consideration.

The appellee, hereinafter styled the plaintiff, brought suit against the appellant, hereinafter styled the defendant, to recover on a draft for $900. The second paragraph of the plaintiff's complaint is as follows, to wit: “That on the 5th day of July, A. D. 1910, the defendant's special agent, Chas. Quitzow, for and on behalf of the defendant, and at the special instance and request of the defendant, as the act of the defendant, and while in the discharge of his duty as such special agent, according to the usage and custom of defendant made, executed and delivered a sight draft in writing, as such special agent and as the act of defendant, payable to the order of Amy Henry by defendant in the city of New York, in the sum of nine hundred and no/100 dollars ($900), with a receipt attached, it being a part of the said draft, and attached to the said draft, with a copy of the corporation seal printed thereon, a copy of which said draft is in words and figures as follows, to wit: ‘$900.00. Los Angeles, Cal., July 5, 1910. The Home Insurance Company, New York. Pay to the order of Amy Henry, nine hundred and no/100 dollars, being in full for loss and damage by fire under policy No. 536 of Artesia, New Mexico, agency as per receipt hereto attached. Chas. Quitzow, Spc.’ Indorsed on back: ‘Amy Henry.’ ‘This draft will not be paid if detached from receipt herein referred to.’‘The Home Insurance Company, New York. $900.00. Los Angeles, Cal. July 5, 1910. Received of Chas. Quitzow, Spc. Agent, a sight draft on the Home Insurance Company, New York, for the sum of nine hundred and no/100 dollars which when paid will be in full of all claims and demands for loss and damage by fire on the 23rd day of May, 1910, to the property insured by policy No. 536 issued at the Artesia, New Mexico, agency of said company, and in consideration of said payment the policy is hereby cancelled and surrendered to said company. Amount of claim, $900.00. Interest, $5F. Draft, $900.00. Amy Henry.’‘Duplicate of this receipt has been indorsed on the policy and...