Harpending's Ex'rs v. Daniel

• Decision Date: 19 October 1882
• Citation: 4 Ky.L.Rptr. 330,80 Ky. 449
• Parties: Harpending's ex'rs v. Daniel.
• Court: Kentucky Court of Appeals

80 Ky. 449

4 Ky.L.Rptr. 330

Harpending's ex'rs v. Daniel.

Court of Appeals of Kentucky.

October 19, 1882

1. The same reason that excludes the testimony of a party offered as evidence for himself concerning a transaction with a principal who is dead when the testimony is offered, likewise excludes it when the transaction was with an agent who is dead when it is offered.

2. The fact that the agent testified at a former trial does not change the rule. He must be living when the evidence of his statements is presented.

3. E H. Daniel, being once interested, cannot, by assigning his interest to his co-partner, render himself competent to testify as to the statements of the agent who is dead.

4. A holder of a check who can trace a legal title to it may maintain an action upon it in his own name, whether he possesses the beneficial interest in its contents or not.

APPEAL FROM CALDWELL CIRCUIT COURT.

S MARBLE & SON AND R. W. WOOLLEY FOR APPELLANT.

1. E W. Daniel having been once a joint holder and owner of the check, cannot, by assigning his interest to another, render himself competent to prove the statements or declarations of Dudley made during his life-time. When Daniel is offered Dudley was dead.

2. Although Dudley testified upon a former trial, yet his death renders Daniel incompetent to prove his statements. (Civil Code, secs. 605, 606, subsec. 6; 19 Conn. 292; 14 Mass. 534; 2 Cranch, 358; 7 Ib., 52; 6 Ib., 307; 3 Scammon, 153; 15 Johns., 358; 4 Const., 140; 3 A. K. Mar., 489; 10 B. Mon., 172.)

3. The question of ownership of the check is one of fact, and to be determined by the jury. The court has no right to assume that ownership was proved. (Letcher v. Yantes, 3 Dana, 162; Stith v. Jones, 4 B. Mon., 370; L., C. & L. R. R. Co. v. Goetz, 79 Ky. 442.)

G. W. DUVALL AND F. W. DARBY FOR APPELLEE.

1. Whatever may be the effect of subsection 9, section 606, Civil Code, the witness Daniel is competent to testify under exceptions " C and D," subsection 2.

2. On the first trial Dudley had introduced himself as a witness. When he testified he was the personal representative of the decedent, and a devisee under the will. (58 Ga. 479.)

3. An indorsee may take up a bill, erase his indorsement, and reissue the bill. (Daniel on Negotiable Inst., 1238; Story on Bills, sec. 223; Story on Agency, 45, 84; 10 Bush, 632.)

OPINION

LEWIS JUDGE:

August 30th, 1873, A. Harpending drew and delivered in Princeton, Kentucky, a check upon Henry Clews & Co., bankers in the city and State of New York, for $1,000, payable to E. H. Daniel & Brother, or order. And September 22d, 1873, the latter firm sold and transferred the check, by written indorsement, to R. M. Bishop & Co., of Cincinnati, Ohio, who, on the 25th of the same month, caused it to be presented for payment to Henry Clews & Co. at their banking-house in New York, and payment being refused, it was duly protested for non-payment, and notice thereof given to the proper parties.

Upon the return of the check protested to R. M. Bishop & Co. they re-delivered it to E. H. Daniel & Brother, and were repaid by them the amount of it and protest fees. E. H. Daniel & Brother held the check until October, 1876, when, at their request, R. M. Bishop & Co., the indorsement to whom had not been erased, indorsed it without recourse to R. T. Daniel, a member of the firm of E. H. Daniel & Brother.

In 1876, after the transfer to him, R. T. Daniel brought this action against the executors of Harpending, who died the latter part of the year 1873, and upon the trial a verdict and judgment were rendered in his favor for the amount of the check, interest, and protest fees.

The only questions made by the executors, who have appealed, necessary to be here noticed, are, first, whether the court below erred in assuming in the instructions to the jury, as a fact established, that the plaintiff in the action was the owner of the check; and second, whether the testimony given upon the trial by E. H. Daniel, a member of the firm of E. H. Daniel & Brother, was competent.

It is well settled that any holder of a check who can trace a clear legal title to it may maintain an action upon it in his own name, whether he possesses the beneficial interest in its contents or not. The possession of such holder is prima facie sufficient evidence of his right to sue.

In this case the legal title was in R. M. Bishop & Co., and the effect of their indorsement to R. T. Daniel was to transfer it to him. And although the ownership of the check was attempted to be put in issue by appellants, still, in the absence of allegation or proof affecting the validity of the instrument itself, or showing that the prosecution of the action in the name of appellee deprived appellants of any defense they might have otherwise made, we do not think the court erred in assuming that appellee was the owner, and entitled to maintain the action.

The other question is more serious.

From the agreed state of facts, it appears that Henry Clews & Co. were, on the 30th of August, 1873, bankers of good credit, doing business in the city of New York, paying or causing to be paid all checks and bills payable by them that were presented for payment, and so continued until the 23d of September, 1873, two days before the check in question was presented, when they suspended payment, and did not afterwards resume, but went into bankruptcy, their estate not paying the cost of the bankrupt proceedings and the preferred claims against it.

It further appears that Harpending had on deposit with them to his credit during that period sufficient money to pay the check, which has never been repaid to him.

As it is therefore manifest that the delay until the 23d of September in presenting the check for payment was unreasonable, and that Harpending, by reason of such delay, has lost the amount of it, appellee has no recourse upon his estate unless it be made to appear that due presentment of the check for payment was waived by Harpending or his agent.

It is alleged by appellee in his petition, as an excuse for the delay in presenting the check for payment, that at the time it was sold and delivered to E. H. Daniel & Brother, it was agreed between them and one Dudley, who, they allege, and we think satisfactorily show, was the general financial agent of Harpending, and as such sold and...