Cooper v. Bailey

52 Me. 230

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1863
• Status: Published

Opinion

The opinion of the Court was drawn by

Appleton, C. J.

The note in suit is payable to the order of A. J. Lynn and W. Perkins, and is indorsed "Lynn & Perkins.” At the date of the note, there was no such firm as Lynn & Perkins.

The proof is clear that Lynn had authority from Perkins to transfer the note, and, after its indorsement by Lynn, in the name of Lynn & Perkins, that Perkins sanctioned and approved such indorsement.

The authority to indorse may be by parol, and the agent may transfer the title by signing the name of his principal, to whom the note is payable. It need not appear that the signature was placed there by an agent. Morse v. Green, 13 N. H., 32; Shaw v. Emery, 38 Maine, 484.

The payee of & note may transfer it by indorsement in pencil. Clossen v. Stearns, 4 Vt., 11. The initials of the holder of a bank cheek indorsed thereon, are enough to charge him as indorser. The Merchants’ Bank v. Spicer, 6 Wend., 443. "A person,” remarks Nelson, C. J., in Brown v. Butchers’ Bank, 6 Hill, 443, "may become bound by any mark or designation, he thinks proper to adopt, provided it is used as a substitute for his name, and he intends to bind himself.” When a note, payable to A or order, was indorsed by him, with intent to negotiate it, in the partnership name of A & Co., a firm composed of A & B and then subsisting, it was held that such indorsement transferred the note to the indorsee. Finch v Deforest, 16 Conn., 445.

As an indorsement with the initials of the indorser is sufficient, so one with the surname of the payee must be deemed valid. If the note had been payable to Lynn, he might have passed the title by indorsing his surname only. As he could thus transfer a note by the indorsement of his own surname, so, by a similar indorsement, he could transfer the interest of Perkins, more especially when the indorsement thus made was adopted and approved by him.

In Lowell v. Reading, 9 Maine, 85, cited by the counsel for the defendant, the authority to indorse was revoked before the act of indorsement.

It appears that the American Bank, one of the trustees, had its place of business in Kennebec county. It does not appear that the name of this trustee was inserted after service on the principal debtors. The action may therefore be brought in the county of Kennebec, or of Lincoln, where the other parties resided, at the option of the plaintiff. R. S., 1857, c. 86, §§ 5, 6.

The evidence fails to disclose any defence to the suit. It is immaterial, therefore, to the defendants, in whose name it is brought. Defendants defaulted.

Cutting, Davis, Kent and Barrows, JJ., concurred.