Mitchell v. Culver

7 Cow. 336

Opinion

Curia, per Sutherland, J.

This case is not distinguishable in principle, from that of The Mechanics' & Farmers' Bank v. Schuyler,

Footnotes

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(a) decided at the last term. The only *differenee is, that here the date was inserted with the know- ’ A. T .... ledge of the plaintiff. But I do not perceive that this can vary the case. When an indorser of a note commits it to the maker, with the date in blank, the note carries on the face of it an implied authority to the maker to fill up the blank. As between the indorser and third persons, the maker, under such circumstances, must be deemed to be the agent of the indorser, and as acting under his authority, and with his approbation. Although it is not essential w the legal `validity of a note, that it should be dated, yet we all know that it is necessary to its free and uninterrupted negotiability. A note without a date, will not be discounted at our banks, nor pass in the money market, without previous inquiry. All the parties, therefore, to a note intended for circulation, must be presumed to consent that the person to whom such note is entrusted for the purpose of raising money, may fill up the blank with a date. The evidence does not show that the plaintiff paid less for the note than its face.

Judgment for the plaintiff.

Mechanics’ and Farmers’ Bank against Schuyler and others.

Assumpsit ; indorsees against the first four indorsers, joint payees of a promissory note; tried at the Albany circuit, February 9 th, before Duer, C. Judge; when a verdict was taken for the plaintiff, subject to the opinion of - this court.

Talcott (attorney general,) for the plaintiff.

M. T. Reynolds, contra.

Curia, per Sutherland, J. The note was indorsed by the defendants on the 23d of February, 1825 ; there being, at that time, no date to it; and the defendants, knowing that fact, (for they read the note before they indorsed it,) re-delivered it in that state to the maker. The maker, on the 28th of February, inserted the date of the 28th of January, 1825 ; and about the 1st of March, negotiated it to the plaintiffs, who were ignorant of the circumstances stated.

The question is, whether, as between these parties, the note is rendered invalid, in consequence of its having been ante-dated, so that it had nearly 30 days less to run, than it would have had, if it had been dated as of the day when it was indorsed.

An indorsement on a blank note, without sum, or date, or time of payment, will bind the indorser, for any sum, payable at any time, which the person to whom the indorser entrusts it, chooses to insert. It is a letter of credit for an indefinite sum. Russsll v. Langstaffe, Dougl. 514; 6 Cranch, 151; 2 M. & S. 90; 4 Mass. Rep. 54, 55. If there is an implied discretionary authority in such case to fill all the blanks, it would seem to follow, that such an authority must equally exist to supply one, if one only be left. Accordingly, if the amount be,left blank, any sum may be inserted; if the time of payment, it may be fixed at the pleasure of the holder; and in the hands of a bona fide indorsee, the indorser cannot question the transaction, though the blanks may have been filled in a manner entirely different from the understanding and expectation of the indorser, when he put his name upon the note.

It is said that the note in this case was perfect without a date. It is true that the date is not essential to the validity of a bill or note; for where they have no date, the time, if necessary, may be inquired into, and will be computed from the day they were issued. 2 Ld. Raym. 1076; 2 Show. 422 ; Chit, on Bills, 78; 3 B. & P. 173; 2 John. 303; 13 East, 5. Nor is it necessary to the validity of a note, that a time of payment should be expressed in it. If none be fixed, it is payable on demand. Chit, on Bills, 79; 7 T. R. 427. But if a note is indorsed, perfect in every respect but the time of payment, and that is left blank, can there be any question of the authority of the maker, if the note be re-delivered to him, to insert any time of payment he may think proper, before he puts it in circulation ? Can the indorser, in such a case, protect himself from liability, on the ground of an alteration of the note ? If not, upon what principle can the insertion of the date, where that is left blank, be considered an alteration ? If it be conceded, as it must be, that the maker in this case had an implied authority to fill up the blank at all, the indorser, and not the innocent indorsee, must suffer the consequence of an abuse of that authority, if it has been abused. It is not, in judgment of law, an alteration of the note. The defendant must have contemplated the addition of the date, before the note was to be passed; for it was payable at the Mechanics’ & Farmers’ Bank. It is believed to be the invariable custom of banks to discount no paper without a date. .

The cases of The Bank of America v. Woodworth, (19 John. 391,) and Martin v. Miller, (4 T. R. 320,) are very distinguishable from this. In the latter case, the date of the bill was originally inserted, and had been actually altered by the holder, without the knowledge or assent of the acceptor. In the first case, the place of payment was inserted without the consent of the indorser.

Judgment for the plaintiff.