Kennedy v. Murdick

5 Del. 263

• Court: Superior Court of Delaware
• Decided: July 5, 1850
• Status: Published

Opinion

The Court,

on this evidence, allowed the defendant to attack the

consideration of this note; and charged that under thegeneral issue, the defendant might avail himself of any defence which goes to show that the plaintiff could not at the commencement of the suit eqitably claim the money. Though a note imports a consideration, yet if the defendant shows a condition on the performance of which the consideration depends, he cannot recover without proof of its performance.

Verdict for the defendant.

The plaintiff afterwards moved for a new trial, on the following grounds:—T. That the court permitted the defendant to go into proof of failure of consideration of the promissory note, without proof of notice to the plaintiff. 2. Because the court erred in charging, that if there was any proof that the promissory note was given on a condition, that it was incumbent on plaintiff to prove he had performed the condition. 3. Because the court put the onus of proof of consideration on the plaintiff.

Mr. Whiteley.—1. In England, in the common pleas, such notice is required; in the King’s bench it is not required, but advised. The practice here is not certain. 2. The English cases,-as to the burden of proof, have been conflicting; it is now settled there and in the United States, that the payee of a promissory note is never obliged to prove a consideration, unless the note was obtained by fraud or duress. (Chitty on Bills, 78-9; 3 Blackford's Rep. 276 ; 2 Strange 674; 7 Johns. Rep. 321; 2 Tyrwhitt Rep., 396; 13 Wend. Rep., 557, 12 Ib., 484; 8 Cowen Rep., 31; 1 Meeson & Welsby, 425; 22 Eng. Com. Law. Rep., 49.)

Mr. Huffington.—I do not dispute the authorities cited, but distinguish the case. I agree that prima facie a promissory note imports a consideration; but I deny that this obliges the defendant to prove there was no consideration, after he proves the note was given on a condition precedent. The plaintiff is obliged in that case, to prove performance of the condition. The proof was that a letter accompanied the nóte, stating that it was given on condition that the plaintiff procured a certain mail contract for the defendant. The letter thus became a part of the promissory note, and if it was torn off by the plaintiff, it does not excuse him from proving the condition on which the note was given. That condition is the consideration of the note, and without its performance there is no consideration. It was a condition precedent, which the plaintiff was bound to aver and prove. (3 Johns. Rep., 149 ; 2 Burr. Rep., 899; 10 Johns. Rep., 238.) The defendant cannot prove a negative. The burden of proof lies on the person who is bound to show any fact particularly within his own knowledge. (2 Camp. Rep., 205.)

Whiteley. in reply.—If the principle stated in the charge, and maintained in this argument, be correct, it stops the negociability of promissory notes. Unless the condition appears on the face of the note, the plaintiff may sue without any proof of consideration, and the defendant must prove both the condition and its non-performance. The case cited from Johnson is not on a promissory note at all. It was a mere contract for paymenfrof money when collected. The case in Burrows’ Reports does not apply, nor the case from 10 Johnson. They are not on promissory notes.

There is nothing in the idea of impossibility of proving a negative. The evidence from the post office department will as easily prove that a certain contract was not procured, as that it was.

By the Court.

Harrington, Judge.

The defence changes this note from the character of a negociable instrument into a mere agreement; a conditional contract. A promissory note cannot be on a contingency; if the money be not payable at all events, the instrument must be treated as a special agreement. (5 Term Rep., 482.) If a condition appear on the face of an instrument, or is so connected with it as to form a part of the instrument, it must be declared on as a conditional contract; and the plaintiff must prove performance of the condition. If the face of a paper shows a negociable instrument, a note or bill of exchange, it imports a consideration, and the plaintiff is not bound to prove consideration, except in cases of fraud in the execution or possession of the instrument. The want of consideration, or other defence, must be proved by the defendant.

These are the principles. Wo have had some difficulty in applying them to this case. Was the condition set up here as the consideration of this note, a part of the note ? On its face it is a pro missory note for $100, payable in the usual form to II. Kennedy or order. But it is proved that this note originally formed part of a letter addressed by Murdick to Kennedy, in which he says he has drawn a mite for $100, payable to Kennedy’s order at sixty days, provided he should get a certain contract from the post office department. The court in charging the jury, were inclined to connect the letter with the note; and required the plaintiff to prove the performance of the condition. In Leeds et al vs. Lancashire, (2 Camp., 205,) the court held an endorsement on the hack of a note of its conditional character, a part of the instrument; but we think the court here went too far in making this letter a part of the instrument. It was mere evidence of the condition on which this note, absolute on its face, was given ; and only better than a paroi understanding to the same effect between the parties, as being more easily proved. If by connecting the letter with the note, they became one instrument, the plaintiff was bound to declare on it as a special agreement, and to aver and prove performance of this condition precedent. But when the note is for payment of money absolutely, the onus is on the defendant to prove want of consideration, which he does not do by merely proving a condition; he must show that the condition was not performed. If there be no proof on that subject, the case stands on the legal presumption of a consideration arising from the character of the instrument, and from the plaintiff’s possession of it.

Whiteley, for plaintiff. Huffington, for defendant.

If this rule should operate hardly on the defendant, it is necessary to sustain a general principle, and preserve the negociability of such instruments ; and it arises from his own folly in giving an absolute note, without expressing the conditional character of its consideration.

We think, therefore, that we erred in the charge to the jury on this point; and that there ought to be a new trial.

Rule absolute.