Harris v. Enyart

13 Mo. 108

• Court: Supreme Court of Missouri
• Decided: January 15, 1850
• Status: Published

Opinion

RYLAND, J.

This case, from the above statement, presents the action of the court below in giving and refusing instructions before us, for our decision. The only matters involved, demanding our attention arise from the instructions. It seems that the plaintiff below, for a valuable consideration, became in possession of the note sued on : that the defendants signed their names to a blank piece of paper, or to a piece of paper with four hundred dollars written on the left hand corner, in figures, $400.

The defendants signed this paper as securities to Burgis, with the calculation on their part, that Burgis would haye it discounted at the bank at Pay-ette. No doubt that such was the expectation of the defendants. They delivered it to Burgis, and he failed to haye it discounted at the bank, but purchased a negro woman with it from Enyart.

The court gave the instruction as set forth in the above statement of the case, for the plaintiff, and refused the three instructions above set forth as asked for by the defendants.

There was evidence offered to show that Enyart knew that the defendants signed the note merely as securities, in order to enable Burgis, for his own individual benefit, to discount it at the bank ; as well as facts and circumstances proved, which might leave this knowledge on the part of Enyart in doubt.

But taking it for granted that Enyart knew, that the note was made, tobe discounted at the bank ; and that the bank had refused to discount it; and that he afterwards obtained the note from Burgis for a valuable consideration ; what effect can such knowledge have, on the liability of the defendants to pay the note ?

Can it be said, that it is a fraud on them to be made to pay the amount to one payee and not to another ? The defendants in this transaction, have but to blame themselves. They placed reliance and confidence in Burgis. They delivered to him the use of their names without even requiring the name of a payee to be inserted on the face of the note, or at what interest or at what credit. If Burgis therefore, failed to carry out his promise to the defendants, they must blame him. By their confidence in him, they enabled him to obtain the money or property of another, and it is better for the public generally, that he, who by his misplaced trust, enables another to act deceitfully or corruptly, should suffer the losses consequent upon such act, than that others should suffer innocently. The instruction therefore given by the court below for the plaintiff, seems to us correct, and according to our view of the law governing this transaction, was the proper one to be given.

In the case of T. & J. Powell v. Waters, 17 Johns. R. 176, which was an action of assumpsit by plaintiff, as third indorsers against defendant as first indorser of a promissory note. The defense, in part consisted of the fact, that the note was made to be discounted at the bank of Newburgh, and that the witness being intrusted with the note to take it to the bank, he had fraudulently put it in circulation. Chief-Justice Spencer, in giving the opinion of the court, says-: “The first note was made and indorsed to raise money on, and it was entirely immaterial whether it was discounted at the bank of New-burgh, or elsewhere. It did not alter or increase the responsibility of the indorser ; the money to be raised, was intended to be for the benefit of Wood (the maker), and he did receive the money for which the first note was discounted. If the plaintiffs (who had discounted the notes themselves) knew when they received the note, that it was intended to be discounted at the bank of Newburgh, and had been refused, it would not affect them or establish any fraud.” We consider this case before us, as bearing some affinity to the one just cited from Johnson’s Reports.(

a)

We concur in the action of the court below in overruling the instructions asked by the defendants. These instructions do not contain the law, and they were properly overruled. The instruction given, left the fact of Enyart’s knowledge, that the defendants had signed the note for a particular purpose, and that they or either of them objected to its being used for any other purpose, to the jury. The jury having found for the plaintiff, we can see no sufficient reason requiring the court below to set aside their verdict and grant a new trial. Binding nothing to demand our interposition, as regards the instructions given and refused, the judgment will have to be affirmed.

(a) See post, Tumilty v. Bank of Mo., p. 276.