Samuel Fowler, Plaintiff In Error v. Harris Brantly and Others, Defendants In Error

• Decision Date: 01 January 1840
• Citation: 39 U.S. 318,10 L.Ed. 473,14 Pet. 318
• Parties: SAMUEL L. FOWLER, PLAINTIFF IN ERROR, v. HARRIS BRANTLY AND OTHERS, DEFENDANTS IN ERROR
• Court: U.S. Supreme Court

39 U.S. 318

14 Pet. 318

10 L.Ed. 473

SAMUEL L. FOWLER, PLAINTIFF IN ERROR, v. HARRIS BRANTLY AND OTHERS, DEFENDANTS IN ERROR.

January Term, 1840

IN error to the Circuit Court of the United States for the Southern District of Alabama.

In the Circuit Court of Alabama an action was instituted on a promissory note, by the plaintiff in error, against the defendants; and a verdict and judgment were entered for the defendants. The plaintiff took exception to the charge of the Court, and prosecuted this writ of error.

The facts of the case, and the matters which were the subjects of the exceptions taken to the rulings of the Court, are fully stated in the opinion of the Court.

The case was argued at January term, 1839, by Mr. Ogden, for the plaintiff in error; and by Mr. Van De Graff, for the defendants. It was held under advisement, for a reference to a statute of Alabama, until this term.

Mr. Justice CATRON delivered the opinion of the Court.

This is an action of assumpsit by the assignee of a note against the makers. The questions of law arising in this cause depend on the construction of a note of hand, in the following words:

'Selma, Dallas County, Alabama, March 1st, 1836.

'Eleven months after date, we, Harris Brantly, Peyton S. Graves, and Hugh Ferguson, jointly and severally, promise to pay Andrew Armstrong, cashier, or bearer, two thousand dollars, value received, negotiable and payable at the Branch Bank of the state of Alabama, at Mobile.

(Signed) HARRIS BRANTLY,

PEYTON S. GRAVES,

HUGH FERGUSON.

'Credit: Diego M'Voy.

HARRIS BRANTLY,

PEYTON S. GRAVES,

HUGH FERGUSON.'

The note had on it the two endorsements of Diego M'Voy and William D. Primrose; and that of Taulmin, Hazard, and Company was stricken out. On the face of the note there was, in pencil, the figures 169.

The defendants, the three makers, introduced evidence to prove that the note, in its present form, (except the endorsements,) was sent by one of the makers to M'Voy, who was his factor in Mobile, to be offered for discount in the Branch Bank of the state in that city as an accommodation note; the proceeds of which were to be forwarded to said maker. That the note was offered for discount and rejected. The factor then proposed to raise money on the note for his own use, without the knowledge of the makers, and intended to conceal the appropriation of the note from them. The first person to whom he offered to sell the note deemed the attempt a fraud, and refused to purchase. M'Voy then endorsed and transferred the note to Primrose for one thousand two hundred dollars, communicating to him it had been offered for discount at the bank and rejected.

Taulmin, Hazard, and Company held a note for three thousand two hundred and fifty dollars, on Black, endorsed by Vail and Dade, and by Primrose, and which was past due; to discharge which, in part, Primrose transferred the note in controversy to Taulmin, Hazard, and Company; and Taulmin, Hazard, and Company endorsed the same before its maturity, to the plaintiff, Fowler, and received credit on their account; they being largely indebted to him at the time.

The leading feature in the cause, involving the principle on which it turns, is this: the note was in the form prescribed by the bank to those who desired accommodations at it; which form was not in use before its adoption there. The memorandum on the left hand side of the note, and signed by the drawers, was designed to show the officers of the bank to whose credit the money was to be placed should the note be discounted; and by the usages of the bank, no other person than the one thus named could receive the money.

Primrose testified, he knew from the pencil mark on the face of the note, it had been offered for discount and refused, when he purchased it. The cashier proved the pencil mark was made according to the usage of the bank on all notes offered for discount and refused.

To a part of the first instruction, that held, if the plaintiff took the note in payment of a pre-existing debt, due to him from Taulmin, Hazard, and Company, then the jury ought to find for the defendants, exception is taken; and the Court refused to instruct the jury, that, if the plaintiff took the note fairly in payment of a debt due to him, before its maturity, without notice of the purpose for which M'Voy...