Spencer v. Carstarphen

• Citation: 15 Colo. 445,24 P. 882
• Parties: SPENCER v. CARSTARPHEN.
• Decision Date: 22 September 1890
• Court: Colorado Supreme Court

24 P. 882

15 Colo. 445

SPENCER v. CARSTARPHEN.

Supreme Court of Colorado

September 22, 1890

Appeal from Lake county court.

Syllabus by the Court

1. Mere indorsement of name of payee on promissory note is ineffectual to pass the title thereto without delivery.

2. Possession of promissory note by payee is, unless the contrary appears, evidence that he is the bona fide owner and holder thereof, and he may strike out the indorsement on the note, and maintain an action thereon in his own name without a reassignment.

S J. Hanna, for appellant.

ELLIOTT J.

This was an action upon a promissory note by the payee, J. E Carstarphen, against Sepencer, the maker. The defendant pleaded, specially, want of consideration for the note, and a general denial. The trial resulted in a finding and judgment for plaintiff. The defendant brings this appeal. On the trial the note being offered in evidence by plaintiff was objected to for the reason that the name 'J. E. Carstarphen' was indorsed on the back of the note. The court permitted the plaintiff to erase the name so indorsed, and thereupon the note was received in evidence. The defendant objected and excepted to the rulings of the court, and assigns the same for error. The grounds of objection, as urged by appellant's counsel in the court below and on this appeal, are to the effect that there was a variance between the note as first offered and the complaint, that the indorsement of the payee's name on the back of the note showed that the note had been assigned, that the title had passed out of the plaintiff, and that he could not maintain his suit upon it in his own name, he not being the real party in interest. Section 4, c. 9, Gen. St. 1883, is relied on to support these objections. The section provides in substance that promissory notes shall be assignable by indorsement thereon under the hand of the payee, so as absolutely to transfer and vest the property thereof in the assignee. The fact that the name 'J. E. Carstarphen' was written on the back of the note, even if it was the genuine signature of the payee, did not operate as an assignment of the note so as to transer the title thereto without delivery. The indorsement was in blank; no assignee was named; and, the note being in the possession of the payee and plaintiff in the action, it was evident that there had not been a delivery thereof. Hence an assignment by the supposed indorsement was...