Loeb v. Weil

209 F. 608, 126 C.C.A. 430, 1913 U.S. App. LEXIS 1826

Opinion

BUFFINGTON, Circuit Judge.

In the court below, the plaintiffs, J. Walter Farrell and others, trading as Weil-Farrell & Co., citizens of Massachusetts, sued Leopold Loeb, a citizen of Pennsylvania, trading as Leopold Loeb & Co., to recover on a six-month negotiable note, made by defendant to the order of the Loeb-Nunez Havana Company, and by the latter indorsed in blank. The defendant filed an affidavit of defense, which the court held insufficient and granted the plaintiffs’ motion for judgment. On entry there of judgment defendant sued out this writ.

[1] The case falls within a narrow compass. The question involved is: In a suit by holders against the maker of a negotiable note, indorsed by the payee in. blank and delivered to plaintiffs before maturity, is an affidavit of defense which denies plaintiffs have title to the note, alleges real ownership by another, and which, while alleging a defense, sets forth no facts which constitute a defense against plaintiffs, or the alleged real owner, sufficient to prevent judgment? The right of a holder of indorsed negotiable paper to bring suit thereon against the maker,' and this even though he is agent or trustee for others, is clear. Ward v. Tyler, 52 Pa. 393; Lingg v. Blummer, 88 Pa. 518; Brown v. Clark, 14 Pa. 469, and cases cited; 8 Cyc. 61.

[2] As to the defense set up against the plaintiffs, the summary of the several affidavits is that one of the plaintiffs’ firm served as a member of a committee and as a director of a corporation formed to adjust defendant’s debts with his creditors; that thereby a settlement at 40 per cent, was effected with defendant’s other creditors, but not with the plaintiffs; that said sum of 40 per cent, for the payment of all defendant’s debts was paid to said adjusting corporation; and that—

“said J. Walter Farrell, as a member of the protective committee and board of directors of the H. N. Gill Company, accepted the settlement of 40 per cent. * * * in satisfaction of all such claims, leaving open and unsettled the claim based upon the note in suit.”

We see no elements of estoppel in these allegations. It is not alleged that Farrell did or omitted to do any act whereby any other creditor of the defendant, or the defendant himself, was either misled or wronged. He simply refused to compound his firm's claim, and stood on their rights. He has in no way estopped his firm from enforcing their claim, and the judgment below is therefore affirmed.