Haskell v. Avery

• Decision Date: 10 March 1902
• Citation: 181 Mass. 106,63 N.E. 15
• Parties: HASKELL v. AVERY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 106

63 N.E. 15

HASKELL v. AVERY.

Supreme Judicial Court of Massachusetts, Norfolk.

March 10, 1902

COUNSEL

U. G. Haskell, for plaintiff.

Frank Paul, for defendant.

OPINION

HOLMES C.J.

The only question is whether the holder of the note and draft can prove in his own name. To decide this it is necessary to consider the purport and effect of the two indorsements. The first is that of Neher: 'For deposit in the National Bank of the State of Florida, Jacksonville, Fla., to credit of E J. Neher.' Neher's name is a signature although it also makes part of a sentence. The signature is often made part of the last sentence of a letter, but no one ever thought, we suppose, that it was less a signature on that account. The indorsement then is in effect the same as if it read, 'For deposit * * * to my credit. E. J. Neher.' Such an indorsement is restrictive in the sense that it gives notice of the trust to any one who should take the note thereafter, and therefore makes it impossible for one who should discount it for the holder to retain the proceeds when collected, to his own use. Lloyd v. Signourney, 5 Bing. 525. But there seems to be no reason for denying that it gave to the Florida National Bank the right to collect the note, and to that end to bring a suit, if necessary, in its own name. Flour Mill Co. v. Holmes, 156 Mass. 11, 12, 30 N.E. 176. In other words, there seems to be no reason for denying that it gave the bank the legal title to the note, as the bank certainly would have owned the proceeds of the note when collected, and thereafter would have been simply a debtor to Neher for the amount. It does not matter if the title was voidable in case the depositor should have seen fit to revoke his mandate, or the bank had returned the paper upon a failure to collect.

If these preliminaries are admitted, there is not much more difficulty in taking the next step. The very purpose of indorsing the note payable in Boston to a Florida bank for deposit is that the Florida bank should get the note collected and make itself the depositor's debtor by the usual measures. Those, it is well known, are the indorsements through intervening banks to a bank or person in Boston. The fact that the words 'or order' were not added did not, of itself, limit the power of the bank to indorse. More v. Manning, 1 Comyns, 311; Acheson v Fountain, 1 Strange, 557; Edie v. East India Co., 2 Burrows, 1216; Leavitt v. Putnam, 3 N. Y. 494, 53 Am. Dec....