Jamison v. Copher

• Decision Date: 31 March 1865
• Parties: ALLEN JAMISON, Plaintiff in Error, v. GEORGE H. COPHER, Defendant in Error.
• Court: Missouri Supreme Court

35 Mo. 483

ALLEN JAMISON, Plaintiff in Error,

v.GEORGE H. COPHER, Defendant in Error.

Supreme Court of Missouri.

March Term, 1865.

Error to Lincoln Circuit Court.

E. A. Lewis, for plaintiff in error.

I. The demurrer should have been overruled as to the first count in the petition. Prior to the revision of 1845, the right of recovery against an assignor, in case of insolvency of the maker, was limited by the words of the statute to the “assignee of a bond or note other than a negotiable note.” (R. C. 1835, p. 105, § 9.)

The note in the case of Davis v. Francisco (11 Mo. 572) was governed by that statute. But, in the revision of 1845, the words “other than a negotiable note” were left out, showing an intent in the Legislature to give full effect to the general expression “bond, note, or account,” without qualification as to its negotiability or otherwise. (R. C. 1855, p. 323, § 6.) It is but reasonable to suppose that such a change was expressly intended to elevate negotiable notes to an equal dignity and value with non-negotiable, in the only particular wherein they had hitherto been inferior. By this means only could the negotiable words have, in all cases, their legitimate effect of adding to rather than diminishing the value of the security.

II. The demurrer should have been overruled as to the second count. Fraud vitiates all contracts. The party defrauded has a right to be restored to his original position, as nearly as that can be done. It is no answer to say that the plaintiff might have made his claim good by protest and notice; for the plaintiff may have considered the defendant worthless, and bought the notes solely upon his representations of the maker's solvency. And such, in fact, is substantially the case made by the petition. The plaintiff had a right to stipulate for the solvency of the maker as a condition of his purchase. If, as to that condition, he was imposed upon by the defendant, the law cannot substitute the contingent liability of the endorser as an equivalent, and force him to accept it. The law merchant places a special and peculiar liability on the endorser, upon protest and notice, in cases of fair and honest dealing. It does not undertake to supersede the universal law of responsibility for fraud, or to champion its perpetrator against the rights of his victim. (Sto. on Bills, § 225, n. 2, and § 111, n. 3; Sto. on Prom. Notes, § 118, and n. 4; Bayl. on Bills, 405, and n. 70; Wilson v. Force, 6 John. 110; 2 Smith's Lea. Ca. 56, 59; Hellings v. Hamilton, 4 Watts & Serg. 462; Jones v. Emery, 40 N. H. 348; Pasley v. Freeman, 2 Smith's Lea. Ca. 133 (55); Hawkins v. Applesby, 2 Sand. S. C. R. 421; Bartle v. Sanders, 2 Grant's Ca. 199; Robinson v. Ames, 20 John. 146.)

Wm. Porter, for defendant in error.

The petition in this case is wholly insufficient, because it does not, in either count, allege facts which show a cause of action. In an action against an endorser of a negotiable note, the holder must allege in his petition that he duly presented it to the maker for payment, his failure the same to pay, and that of such failure he gave the defendant due notice. (Smith's Merc. Law, 195; Davis v. Francisco, 11 Mo. 572; Jaccard v. Anderson, 32 Mo. 188.) Plaintiff must allege presentation of the note, failure of payment and notice of failure, or a reason which will justify the omission.

If the maker has absconded, and no information of his whereabouts, although diligent inquiry for him has been made, has been obtained, this will excuse the omission. (Smith's Merc. Law, 195.) Bankruptcy, insolvency, or stopping payment, is not sufficient. (Id.)

If the maker die before the maturity of the note, and have no personal representative at the time due, this will excuse. (Ibid.) I know nothing else which will excuse the omission.

Neither of said excuses are alleged in the petition; but plaintiff attempts to justify the omission, by alleging that defendants fraudulently stated to him that the maker was able to pay the note. Suppose that he did tell plaintiff that the maker was able to pay it--how did the statement prejudice him? It is not alleged in the petition that defendant's false statement placed plaintiff in a worse condition. It did not induce him to take the note without recourse on defendant.

Defendant's liability to plaintiff did not depend upon the inability of the maker to pay the note, but upon his failure to pay it when presented.

Suppose the maker at the time of demand worth a million of dollars, yet if he failed to pay his note, the defendant as...