Merlin v. Manning

• Citation: 2 Tex. 351
• Parties: CHARLES MERLIN v. ROBERT J. MANNING
• Decision Date: 31 December 1847
• Court: Supreme Court of Texas

2 Tex. 351

CHARLES MERLIN

v.ROBERT J. MANNING

Supreme Court of Texas.

December Term, 1847.

Writ of Error from Harris County.

The possession of an instrument not negotiable by simple delivery does not create such a presumption of ownership as to dispense with proof of that fact. [[[[[19 Tex. 171;22 Tex. 53.]

When a demurrer or exception does not appear to have been acted on by the court, and the parties have gone to the jury on pleas to the merits of the action, the demurrer or exception will be considered as having been waived.

The holder of an instrument, not negotiable, may maintain a suit upon it in his own name, but he must show his right to the paper, either by an indorsement or proof of ownership. [15 Tex. 25;16 Tex. 549.]

The facts of this case are stated in the opinion of the court.

Alexander, for plaintiff in error.

No appearance for defendant in error.

Mr. Justice LIPSCOMB delivered the opinion of the court, Mr. Justice WHEELER not sitting.

This suit was brought on an instrument of writing, as follows, i. e.:

Mobile, June 10, 1839.

This may certify that I am indebted, for merchandise, to Lui Collet, in the sum of two hundred dollars, for value received.

+--------------------+
                ¦(Signed)¦C. MERLIN. ¦
                +--------------------+
                

The plaintiff alleges in his petition that this instrument was transferred to him by the payee by delivery. There is no averment that the plaintiff had paid any value for the note.

The defendant demurred and pleaded that the plaintiff had no right to sue him, according to the allegations, general denial and some other pleas not material to be noticed. On the trial the judge was requested to make the following specific charges:

1st. That every plaintiff is bound to sustain by proof every material allegation of his petition.

2d. That it is a material allegation of a plaintiff, who sues as assignee, that the note was assigned to him by delivery or otherwise.

3d. That if a plaintiff sues as assignee or holder, he must show that he is assignee.

4th. That in the case before the court the plaintiff was bound to prove by testimony that the plaintiff, R. J. Manning, is the holder of the note sued on.

The judge charged that the production of the note is evidence or testimony, and that if Manning was the holder of the note at the time of bringing the action, it is prima facie evidence of a transfer by delivery and ownership.

The points presented were so imperfectly constructed that the judge might well have refused to charge on any one of them. There can be no doubt, however, that the object of the defendant's counsel was to have the jury charged, that in order for the plaintiff to recover he must prove that he was the bona fide holder for a valuable consideration, and that the note or writing had been actually transferred to him by the payee. And to charge against any implication in his favor from the mere fact of his being in possession of the instrument; that this was the object of the defendant's counsel, may be collected from the fact that the paper had no written assignment on it, and that in his plea of setoff, he says the payee died intestate. Points presented by a bill of exceptions should be so distinct and expressive as to the parties' object, that nothing should be left to inference.

In the charge of the judge we think there is error. He seems to have gone on the ground that the possession raised a presumption of ownership and gave a right of action. The possession of an instrument like the one sued on does not create such presumption as to dispute with proof; the rule that possession of a note or bill is presumptive evidence of the holder being the owner, applies to such instruments as are negotiable. If a person is in possession of a note indorsed in blank, having nothing but the payee's name on the back of it, or is the holder of a note payable to bearer, as...