Holbrook v. Payne

• Decision Date: 08 May 1890
• Citation: 151 Mass. 383,24 N.E. 210
• Parties: HOLBROOK v. PAYNE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 383

24 N.E. 210

HOLBROOK v. PAYNE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 8, 1890

The defendant Payne did certain work for the town of Winchester for the sum of $217.27, and gave an order on the town to defendant Cutting, of which the following is a copy:

"Town of Winchester: Pay to the order of A. Cutting ninety and thirty-two hundredths dollars, value received, and charge the same to account of

"$90.32 H.B. PAYNE."

This order was delivered to the chairman of the selectmen of the town. The town was first summoned as trustee of the defendant, and was again summoned by special precept. The contest is between plaintiff, who claims to hold under the special precept, and the defendant Cutting. The defendant Payne defaulted. The court found for defendant Cutting, and plaintiff appealed.

COUNSEL

T.E. Grover and F. Joy, for appellant.

A.S. Hall, for defendant Cutting.

OPINION

HOLMES J.

The defendant in this action has been defaulted, and the question before us is whether the plaintiff or the claimant Cutting is entitled to a certain part of the debt due from the trustee to the defendant.

There is no doubt that an order for a specific fund identified by the order itself may be a good assignment. Kingman v. Perkins, 105 Mass. 111. We assume, in favor of the claimant, that an equitable assignment to him of a part of the debt would be good, as between him and the plaintiff, upon trustee process. Dana v. Bank, 13 Allen, 445, 447; James v. Newton, 142 Mass. 366, 374, 8 N.E. 122. Our difficulty is to discovery any ground for saying that the instrument relied upon constituted such an assignment.

On its face the order given to the claimant by the defendant does not refer to a particular fund or debt, but is an ordinary negotiable draft or unaccepted bill of exchange drawn upon the town on the general credit of the drawer. An indorsement of the instrument by the claimant would have given the indorsee a right of action in his own name against the drawer, if the draft should be dishonored. But the fact that the order is a negotiable instrument on its face shows that it is not drawn against a particular fund. If it were drawn against a particular fund, it would not be negotiable. Wheeler v. Souther, 4 Cush. 606, 607; Harriman v. Sanborn, 45 N.H. 128.

The case is stronger for holding a check upon a bank to be an assignment than it is for holding an ordinary draft to be so. A check is supposed to be drawn against a fund deposited for which, to be sure, the bank is no more than a debtor, but a debtor on the implied term that the creditor has a right to split up the debt at will and to require part payments, in such amounts, at such times, and to such persons, as he chooses. In general, the creditor has no right to draw above the amount of his deposit, and would be guilty of a fraud if he obtained money or goods for a check knowingly so drawn; yet the weight of authority is that a check is not an assignment, either at law or in equity. Bullard v. Randall, 1 Gray, 605; Dana v. Bank, 13 Allen, 445, 447; Attorney General v. Continental Life Ins. Co., 71 N.Y. 325; Bank v. Gish, 72 Pa.St. 13; Hopkinson v. Forster, L.R. 19 Eq. 74; Schroeder v. Bank, 24 Wkly.Rep. 710. See Bank v. Schuler, 120 U.S. 511, 514, 7 S.Ct. 644.

A fortiori the same rule must hold good of an ordinary draft unaccepted, which does not import the existence of a debt from the drawee to the drawer, but leaves the mode of the drawee's reimbursement to such private arrangements as may exist between the drawer and himself. And so are the decisions. Whitney v. Bank, 137 Mass. 351, 355, 356; Bank v. McLoon, 73 Me. 498, 511; Bank v. Bogy, 44 Mo. 13. See First Nat. Bank v. Dubuque S.W.Ry. Co., 52 Iowa, 378, 3 N.W. 395.

There is no extrinsic fact in the present case which gives the document a different effect from that which results from its tenor, if it be possible that its effect should be varied by parol. See Whitney v. Bank, 137 Mass. 351, 355; Griffin v. Weatherby, L.R. 3 Q.B....