Kellogg v. Curtis

• Decision Date: 30 December 1875
• Parties: JOHN KELLOGG v. IVORY W. CURTIS.
• Court: Maine Supreme Court

65 Me. 59

JOHN KELLOGG v. IVORY W. CURTIS.

Supreme Judicial Court of Maine.

December 30, 1875

1874.

ON EXCEPTIONS from the superior court.

ASSUMPSIT on a promissory note of the tenor following: " Town of Bingham, county of Somerset, December 15, 1870. One year after date, I promise to pay to the order of J. S. Newcomb two hundred dollars, value received, with use at the Second National Bank at Skowhegan." Signed, " I. W CURTIS," and indorsed, " J. S. NEWCOMB. For remittance to Agricultural National Bank, Pittsfield Mass."

The defendant duly filed the following denial of signature " I on oath say, that while the signature to the instrument produced as the one declared on appears to be my genuine signature, I never signed the note declared on knowing it to be a note, or having any reason to suppose it was a note."

This denial was ruled to be insufficient under the rule to require the plaintiff to prove the signature.

The plaintiff offered evidence tending to show that he was the bona fide holder of the note, for valuable consideration paid therefor before maturity, without notice of fraud in the making of the note, or of equities between the original parties thereto. The defendant offered evidence tending to show that the note was procured by the fraud of the payee, and that there was notice thereof to the plaintiff sufficient to put him upon inquiry before he purchased the note.

The following is the only testimony in regard to the manner in which the note was originally procured of the defendant by the payee.

The defendant testified: " I am a farmer; about December 15, 1870, Ira Brown drove into my door-yard and inquired the distance to Bingham; asked if I used a mowing machine; said he was around appointing agents to sell a patent sickle bar, as he called it; he drew out a model and put it in operation; I said I thought it was rather a good thing; he wanted me to accept the agency of the town; I declined; he insisted, and said, ‘ if you knew my proposals, perhaps you would take it; ’ they were to give the agent one-half of the profits, and the price to sell for was ten dollars a pair; after a while I consented but did not agree to take any certain amount; he sat in his carriage, wrote what he called a commission to sell and left it with me; he then asked questions as to my post-office address, the nearest express station, the nearest convenient bank, and kept writing as he questioned and received answers; and then said, ‘ I want you to come and sign your name.’ Said I, ‘ you can do it just a well as I.’ Said he, ‘ I rather you would write it to show that it is correct.’ He handed me the book. It was dark, and I use glasses. I held the book on my knee, wrote my name, and handed the book to him. He did not get out of his carriage. He was to send me a bundle of the sickle bar and a model. I received nothing from him. Brown pretended to be acting for Mr. Newcomb."

The presiding justice who tried the cause without the intervention of a jury, adjudged as follows: " Upon the foregoing testimony, which is uncontradicted, I find as matter of fact, that the note in suit was procured of the defendant by the fraud of the payee, without knowledge on the part of the defendant of the character of the paper signed, and without negligence on the part of the defendant.

I. And without deciding the contradicted question of fact, whether the plaintiff is a bona fide holder for value without notice and before maturity, I rule pro forma as matter of law, that a note so procured without negligence on the part of the maker, is invalid even in the hands of an innocent third person who has obtained it in the manner claimed by the plaintiff.

II. The testimony of Curtis, the maker of the note, in regard to the circumstances under which the note was given, was admitted subject to objection."

To the rulings in matters of law numbered one and two, the decision being for the defendant, the plaintiff excepted.

G. W. Verrill, for the plaintiff.

J. H. Drummond, for the defendant.

PETERS J.

The principal question in this case was substantially settled by the decision in Abbott v. Rose, 62 Me. 194. It was there held, that a person who negligently signs and delivers to another a printed blank note, not knowing it to be such but supposing it to be some other agreement, was liable thereon, if the blanks were afterwards wrongfully filled, and the note then transferred to a bona fide holder for value, without notice of the fraud. In this case, instead of an unfinished written promise, the paper executed by the defendant is a completed negotiable note. Although obtained from the defendant by circumvention and fraud, we think he is liable thereon to an innocent holder of the note. We are aware that there are many cases in the diferent states, where the tendency of the decisions may be the other way. The authorities are conflicting. But in consideration of the importance that attaches in a commercial community to a free and safe circulation of...