Hunter v. Hempstead

• Decision Date: 30 April 1821
• Citation: 1 Mo. 67
• Parties: HUNTER v. HEMPSTEAD
• Court: Missouri Supreme Court

1 Mo. 67

HUNTER

v.HEMPSTEAD

Supreme Court of Missouri.

April Term, 1821.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

M'GIRK, C. J.

This was an action on the case by an endorsee of two promissory notes, against the payee and first endorser. The declaration states that James Thompson and John P. Finley, as partners, by Finley, made their notes to Hempstead, that he endorsed them to John W. Thompson, who endorsed them to the plaintiff.

The declaration is in the common form, stating that Hempstead endorsed to J. W. Thompson, and that he endorsed to Hunter, the plaintiff. First plea, non-assumpsit. Second plea, that the defendant did not make the endorsement to J. W. Thompson, as stated in the declaration. Third plea alleges the plaintiff had commenced his action against the makers of the notes, and that one of them was arrested and appeared to the action. To the first and second pleas, issue is taken to the country, and to the third there is general demurrer. The two issues of fact were found by the Court for the plaintiff, and the demurrer to the third plea sustained It is the opinion of this Court, the issues of fact were rightly found, as for any thing appearing of record to this Court: and agreeably to the decision of this Court, at this term, Hunter v Price, the demurrer was rightly sustained, there the question was, what is sufficient diligence on the part of the holder of an endorsed promissory note to entitle him to maintain his action against the endorser? And it was decided, on solemn argument, by the whole Court, that a demand on the maker, when the note becomes due, and his failure to pay, are sufficient to maintain the action This case is exactly like that, and must be governed by it^(a) Now here the question is solemnly made, can the makers of a note and the endorser be sued at the same time, in several actions? (see Chitty on Bills, American edition, 361) and the question is also made, that here there is no privity between Hunter and Hempstead, and that, to entitle Hunter to sue Hempstead, J. W. Thompson's name should have been stricken from the note, Chitty on Bills, 370 (American edition), is expressly to the contrary Another error complained of in disposing of the first issue, is, that by the bill of exceptions in this case, it appears no demand of payment of said notes was made of Finley, but only of Thompson, one of the partners.

It cannot be perceived how it necessary to make a demand of all the partners composing a company; one partner may make a note in the course of business, and bind the company (Watson on Part 195, Chitty on Bills, 40, 41); he may accept a bill drawn on them, and they are bound by it; he may make payment of a note, or bill made, or accepted by the company (see as above, Watson and Chitty); and how it can be, that the refusal of one partner to pay, is not a refusal of the company as to the holder, this court cannot discover. There is, therefore, no error on this point.^(b)

The bill of exceptions shows that at the time the notes were made, the defendant endorsed them in blank, and then J. W. Thompson also endorsed in blank, and they were then delivered to the plaintiff, and the witness knew of no other object in making the endorsements but to secure payment. It was insisted by the defendant on the trial of the cause in the Circuit Court, that, as it respected the second issue, this testimony and these facts were ineffectual in law to authorize the plaintiff to fill the endorsement as he had, and so the defendant insisted the second issue ought to have been, by the court, found for him.

It often happens in the course of business, notes are endorsed by several at the same time, for no other purpose than to make the payment secure; but, let this be as it may, the legal properties of the instrument, and the legal effect of the endorsements, are not altered. The holder may fill the blank endorsements to himself, or strike some out, if he chooses to do so (Chit. on Bills, Amer. ed., 370, 371). The endorser in this case has treated the instrument as he was warranted by law to do. There is no error on this point. ^(c) Let the judgment, therefore, be affirmed with costs.

JONES, J., dissenting.

This was an action brought by Hunter v. Hempstead, as endorser of two notes of hand, drawn by James Thompson and John P. Finley, as co-partners, in his favor, which he endorsed to John W. Thompson, who endorsed to the plaintiff, Hunter. To which the defendant pleaded, first, the general issue; second, that he had never endorsed to J. W. Thompson; and third, that the plaintiff had commenced an action on the same notes, against the makers, which was then pending; one of them having been arrested and appeared thereto. Issue was joined on the two first pleas, and a general demurrer was filed to the third. The demurrer being sustained, the issues were submitted to the court without the intervention of a jury.

During the trial, several exceptions were filed to the opinion of the judge. The first, because the court had decided it was not necessary for the plaintiff to have exhausted his remedy against the drawers before he could have recourse against the...