A. R. Linn Co. v. Denly

32 Ohio C.C. Dec. 185, 17 Ohio C.C. (n.s.) 348, 1911 Ohio Misc. LEXIS 323

Opinion

HENRY, J.

The parties stand here as they did below, where the plaintiff sued on the following bill of exchange, which it acquired after maturity, from the drawer, in whose shoes therefore it stands:

“$67.96. Cleveland, Ohio, Sept. 10,1908.

“September 30th, after date, pay to the order of C. T. Denly, Sixty-Seven and 96-100 dollars, payable at the Garfield Savings Bank, Euclid Avenue. Value received, and charge the same to the account of

A. R. Linn, Bro. Agt:

“To the Denly Company, Cleveland, Ohio.

“Indorsements:

“Accepted: The Denly Company, ■ By C. T. Denly, Prest. C. T. Denly.”

The petition alleges that Linn, a sugar broker, in negotiating a sale of that commodity to the Denly Co., refused to make the sale unless the prices were secured by the personal credit of the defendant here. The transaction was accordingly completed in the left handed manner indicated by the bill of exchange above copied. The Denly Co. having become insolvent, the plaintiff seeks to hold the defendant as a party secondarily liable on the bill of exchange.

The action was strictly upon the instrument, and the question is whether the drawer of a bill, who becomes the holder, can hold the payee on his endorsement, as a party liable secondarily, or at all.

Under the plain provisions of Secs. 8155, 8166 and 8226 G. C. (Secs. 3172v, 3173/ and 3175 R. S.) we are perfectly clear that he can not. When a bill makes a circuit and comes back into the hands of a prior party, the intervening parties are discharged of liability. Here Linn, the drawer, subsequently became the holder. Denly is an intervening party, and as such was discharged.

This may not have been the intention of the parties; but their intention ■ can not override the plain provisions of our Negotiable Instruments Act, in actions brought upon such instruments.

Judgment affirmed.

Winch and Marvin, JJ., concur.