Ticonic Nat. Bank v. Bagley

• Decision Date: 06 June 1878
• Citation: 68 Me. 249
• Parties: TICONIC NATIONAL BANK v. EDWARD E. BAGLEY.
• Court: Maine Supreme Court

68 Me. 249

TICONIC NATIONAL BANK v. EDWARD E. BAGLEY.

Supreme Judicial Court of Maine.

June 6, 1878

ON REPORT.

ASSUMPSIT.

E F. Webb, for the plaintiffs.

W. P Whitehouse, for the defendant.

BARROWS J.

The case is presented to us for such judgment as the law and facts require upon a report consisting mainly of a statement of facts admitted, from which it appears that the suit is against defendant as promisor upon a note for $272, signed by him, dated September 1, 1874, and payable in one year after date to the order of one Mahan, who sold it to one Heath, for whom on the 19th of April, 1875, it was discounted by the plaintiffs being indorsed by Mahan and Heath, and being protested at maturity was passed to plaintiffs' attorney by their cashier, and this suit was commenced October 2, 1875, entered at the October term, answered to and continued, and defendant pleads the general issue. The second indorser, Heath, died and his executor, at the request of the plaintiffs, on the 17th of February, 1876, paid the plaintiffs $283 and took up the note, but this suit was still continued in court, and on March 24, 1877, the plaintiffs by an assignment under seal subscribed by their president, made over all their interest in the note and suit to Heath's executor, " with full power to prosecute said suit in the name of said bank, and to collect and discharge the same in the name of said bank, at his own pleasure, expense and risk."

This is all there is of the case, and it discloses no tenable defense. It has long been settled in this state that the promisor upon negotiable paper cannot avoid judgment against him in a suit upon his broken contract merely upon the ground that the person or party in whose name the suit is brought or prosecuted has no interest in the enforcement of the promise.

Provided the promisor is not thereby deprived of any just and legal defense or in any way defrauded or oppressed, he has no cause of complaint because his promise is construed, as it runs, to pay to the order of any person into whose hands it may lawfully fall. Our decisions fully authorize the maintenance of a suit for the benefit of the owner and by his order in the name of any person competent to give the debtor a discharge who consents to the use of his name as plaintiff in the action; and this even in cases where the owner or his agent has instituted the suit in the name of a nominal plaintiff without first getting his consent, provided the party whose name is thus used ratifies the act.

The point has been so often discussed and decided that anything beyond a citation of the authorities must needs be regarded as useless and repetitious. Marr v. Plummer, 3 Me. 73. Fisher v. Bradford, 7 Me. 28. Golder v. Foss, 43 Me. 364. Granite Bank v. Ellis, Id. 367. Patten v. Moses, 49 Me. 255. Demuth v. Cutler, 50 Me. 298. Lime Rock Bank v. Macomber, 29 Me. 564. The defendant objects that no certificate of organization of the bank under U. S. Laws or other evidence of its corporate existence or of its right to sue has been produced. None was necessary. The defendant pleaded the general issue, and that is such an admission of the plaintiffs' corporate existence and power to sue as precludes him from contesting them. Inhts. of Orono v. Wedgewood, 44 Me. 49. O. & L. R. R. Co. v. Veazie, 39 Me. 571. P. & K. R. R. Co. v. Dunn, Id. 587. Putnam Free School v. Fisher, 30 Me. 523. Savage Man. Co. v. Armstrong, 17 Me. 34.

The suggestion of counsel, that the bank never had any interest in the note and that Heath or his executor procured the suit to be brought in the name of the bank because of fraud in the inception of the note, is not only unsupported by proof, but is in conflict with the admitted facts.

According to the doctrine and practice in the cases first herein cited a suit brought or prosecuted in the name of a nominal plaintiff would be subject to the same legal and equitable defenses (mere technicalities perhaps excepted) as if brought in the name of the real owner. But it is no defense to an action on a promissory note that the property in it is in a third...