Richards v. Barlow

• Decision Date: 31 October 1885
• Citation: 6 N.E. 68,140 Mass. 218
• Parties: RICHARDS v. BARLOW and another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 218

6 N.E. 68

RICHARDS v. BARLOW and another.

Supreme Judicial Court of Massachusetts, Hampden.

October 31, 1885

This was an action of contract in two counts. The first count was upon a promissory note as follows:

"$4,430.14. CHICAGO, ILL., December 15, 1882.

"Ninety days after date, for value received, we promise to pay to the order of John B. Jeffery four thousand four hundred thirty and fourteen one-hundredths dollars at the Chicago National Bank, with interest at eight per cent. per annum after due until paid; and to secure the payment of said amount we hereby authorize, irrevocably, any attorney of any court of record to appear for us in such court in term-time or vacation, at any time hereafter, and confess a judgment, without process, in favor of the holder of this note, for such amount as may appear to be unpaid thereon, together with costs, and one hundred dollars attorney's fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that said attorney may do by virtue hereof.

"BARLOW WILSON & CO. [ Seal.]

"GEO WILSON." [ Seal.]

The note was indorsed by "Jno. B. Jeffery." The second count of the declaration alleged that on March 10, 1883, the plaintiff recovered, in the circuit court of Cook county, in the state of Illinois, against George Wilson, one of the defendants, judgment for the sum of $4,530.14 as damages, and $7.50 as costs; that on said March 10th execution was duly issued on said judgment, and was returned in no part satisfied; and that the judgment remained in full force and unsatisfied, and the plaintiff was entitled to recover the amount of the same. At the trial in the superior court, before ROCKWELL, J., the plaintiff put in evidence the note declared on; and it was admitted that it was signed by the defendant Wilson, who was a member of the firm of Barlow, Wilson & Co. The defendants requested the court to rule that the note was not negotiable, and that no action could be maintained thereon in the name of the plaintiff; and the presiding judge so ruled. The plaintiff then put in evidence a duly-authenticated copy of the judgment declared on in the second count, for the purpose of obtaining judgment against Wilson alone upon said judgment. It was admitted that the note upon which the judgment was recovered was the same as the note put in evidence under the first count. The plaintiff asked the court to rule that judgment might be recovered upon said judgment against Wilson, but the judge refused so to rule; ruled that the judgment could not be recovered, and ordered judgment for both defendants; and the plaintiff alleged exceptions.

COUNSEL

G. Wells, for plaintiff.

A. Hemenway, for defendants.

OPINION

HOLMES J.

In the absence of any evidence to the contrary, we must assume that the question whether the note in suit was negotiable is governed by the common law, as amended or declared by St. 3 & 4 Anne, c. 9, (see Com. v. Leach, 1 Mass. 59, 61; Goodwin v. Robarts, L.R. 10 Exch. 337, 350;) and we must assume that that law is as declared by the Massachusetts decisions. It has been decided in Massachusetts that a note payable at a future day certain, or earlier, at the option of the holder, is not negotiable. Mahoney v. Fitzpatrick, 133 Mass. 151. See Stults v. Silva, 119 Mass. 137. The obligation to be gathered from the four corners of the present instrument is similar. The promise, taken by itself, is absolute, to pay in 90 days from date; but the power of attorney on the face of the note authorizes a confession of judgment "at any time hereafter," and we must construe these words as meaning at any time after the date. See Adam v. Arnold, 86 Ill. 185. We cannot distinguish such a case from Mahoney v. Fitzpatrick. For this reason, without considering whether there are any others, we must decide that the note was not negotiable. We do not rely upon the fact that it seems to have been under seal, because there was some difference between counsel as to the meaning of the bill of exceptions.

The ruling that an action could not be maintained against Wilson on the judgment recovered against him in Illinois was erroneous. The form of the ruling shows that it was not made on the technical ground that there was a misjoinder of counts against Wilson alone and against Barlow and Wilson jointly. No such objection seems to have been made at the trial, and no attempt is made to support the ruling on that ground. But it is argued that the jurisdiction of the Illinois court depended on the power of attorney contained in the note; and that, if the note was not negotiable, the scope of the power--"to confess a judgment without process in favor of the holder of this note"--was confined to Jeffery, the payee. But we think it clear that the word "holder" was used in a sense which embraces any indorsee of the note. See Ransom v. Jones, 1 Scam. 291. The form of the instrument plainly imports that it was drawn on the assumption that it would be negotiable, and, even if this assumption was erroneous, it must be taken into account none the less, if necessary in interpreting the meaning of the power. It is not argued that...