Hill v. McPherson

• Decision Date: 31 October 1851
• Parties: HILL v. MCPHERSON.
• Court: Missouri Supreme Court

15 Mo. 204

HILL

v.MCPHERSON.

Supreme Court of Missouri.

October Term, 1851.

ERROR TO ST. LOUIS CIRCUIT COURT.

This was a suit begun before Justice Mann Butler, February 7th, A. D. 1847, by the defendant in error against the plaintiff in error on an instrument of writing in the following figures and words, to-wit: “Dollars $100. ST. LOUIS, August 13, 1845. Borrowed and received of Hugh White, Jr., one hundred dollars payable on demand. (Signed) I. MCPHERSON & CO.”

Upon the back of which was written the following words, to-wit: “For value received I assign the within note to Britton A. Hill, and order that amount due thereby to be paid Britton A. Hill, or his order. (Signed) HUGH WHITE, Jr.”

On the trial before the justice, verdict and judgment were rendered for the defendant in error, and plaintiff in error appealed therefrom, and thereunder the cause went up to the Circuit Court. The trial of the cause was by the court without a jury. On the trial in the Circuit Court, the only evidence given, was the following admission of facts, to-wit; “that said McPherson and Hugh White, Jr., were partners at the making and indorsing of the note; that White indorsed it to said Hill, and that their signatures are genuine; that McPherson signed the note sued on, for the firm of I. McPherson & Co., and that White indorsed to Hill, and the note was read in evidence.

The plaintiff in error prayed the court to give the following instructions, to-wit: “Upon the facts admitted in this case, the plaintiff is not entitled to recover in this case.” Which the court refused, to which decision of the court, the plaintiff in error duly excepted. The court, of its own motion, declared the law of the case to be, as follows, to-wit: “The circumstance, that the payee was a member of the firm which made the note, is no defense to this suit, although, if White himself was the plaintiff, he might have been compelled by the course of practice to resort to another tribunal;” to the giving of which, the plaintiff in error duly excepted. The verdict was rendered for the defendant in error, for the principal and interest of the note; whereupon the plaintiff in error in due time filed a motion to set aside the same and grant him a new trial. This motion the court refused to grant; to which decision of the court the plaintiff in error duly excepted. Final judgment was then rendered for the defendant in error, and the plaintiff in error filled his bill of exceptions; which was signed, and he therefore sued out a writ of error, upon said judgment, to this court.

TODD & KRUM, for Plaintiff. 1. The note sued on, is a chose in action, assignable only by virtue of section 2nd, of the act concerning Bonds and Notes, in Rev. Stat. 1845, pp. 189, 190. By section 4, of the same act, p. 191, it is enacted, that “the nature of the defense of the maker shall not be changed by the assignment, but he may make the same defense against the note in the hands of the assignee that he might have made against the assignor.” And by section 5 of same act, it is enacted “that the assignee shall not obtain greater title to, or interest in any note than the person had from whom he acquired it.” This note does not contain the words “without defalcation or discount” or “negotiable and payable without defalcation.” 2. Now, White, the payee, from whom Hill obtained the note, had no title or interest therein, upon which he could maintain a suit, either at law or in equity. For one partner cannot sue his firm, nor a member thereof, upon an indebtedness of the firm to him. He is, himself, one of the debtors owing the debt. His title and interest in the debt is uncertain and unliquidated and cannot be known till a final settlement, upon which it may appear to be nothing. Therefore, this suit is barred by said section 5. 3. Again, had White sued, upon proof that he was one of the firm of McPherson & Co., a perfect defense would have been made to the suit. Therefore, the suit is barred by said section 4. 4. The principle of “““negotiable” paper, whereby such paper, although made by a co-partnership to one of its members, is transferable the same as if made to a stranger, does not and cannot apply to this case. The statute has made an express distinction between them, and fixed the peculiar properties of each. By virtue of the statute, such paper as this is a mere chose in action, whose assignability, & c., are entirely creations of the statute, and are limited to them, and extend no further. It has no original properties beyond those of an open merchant's account, or any other liquidated demand. This is further...