Hamilton v. Cunningham

1 Tapp. Rep. 257

Opinion

President

As to the first cause of demurrer assigned here, it may be observed, that the statute law authorises the transfer by endorsement suck obligations as this suit is brought on, “so as absolutely to transfer and vest the property thereof, eacb and every endorsee or endorsees successively.” jj. a]g0 autborises the endorsee to bring suit, in his own name, so that, if there was a sufficient covenant whereon the payee might have maintained an action, the statute gives the endorsee the same right of action, and does away all objection to want of privity between him and the maker of the instrument A similar question was made in the case of Haslett vs. Painter and others, decided at the last December term of the Common Pleas in Stark county, which the court decided in favor of the plaintiff, assignee of the obligation. 2d. A demand need not be averred or proven, because a demand or request is no part of the contract between the parties; the case of Thomas vs. Roosa, 7th Johns. 462, cited by the defendant’s counsel, is directly in point to shew that this cause of demurrer is untenable. 3d. The case of Franklin and others vs. Talmadge, 5 Johns. 84, decided that the letter T between the Christian and surname of one of the plaintiffs, was no part of his name, for that “ the law knows only of one Christian name,” on the authority of Co. Litt. 3 a — 1 Ld. Ray. 562, and Vin. tit. misnomer, c. 6, pi. 5 and 6. If the law was otherwise, the objection could not prevail in this case, because the endorsement is averred to have been made by the payee of the obligation. 4th. This cause of demurrer stands on the same ground, or nearly so, with the second; the promise in the writing is to pay “ to John Moreland or order; ” on the obligation being endorsed, the promise of payment attaches to the endorsee immediately; John Moreland has ordered the money to be paid to the plaintiff. It was not a part of the contract, that the defendant, the maker of the obligation, should have notice of such order being drawn, nor can we add such qualification to his undertaking. Bayley on Bills, 108; 1st Bos. and Pul. 625. Demurrer overruled, voith costs.