Sawyer v. White

19 Vt. 40

Opinion

The opinion of the court was delivered by

Bennett, J.

The only question raised in argument by the defendants’ counsel is in regard to the right of the present plaintiff to maintain this action, in his own name, as the indorsee of Tappan. It appears, that the note in question was executed by the wife of White, while sole, with one Daniel Cressey, and made payable to Weare Tappan or order, and that it was indorsed in blank by him. No objection is raised, or can be, against the action, upon the ground that the plaintiff has no beneficial interest in the note, but simply that of a trustee. If he has the legal interest in the note, that is sufficient; and if he recover, it is for the use of Tappan.

It is said, however, that as Cressey, the other signer, had been prosecuted in the courts of New Hampshire by one Atkins, and a recovery had against him as one of the signers of the note, by means of the blank indorsement, no recovery can now be had against the present defendants, by this plaintiff, by force of that indorsement. Although it is not expressly stated, in the bill of exceptions, that the note in question was the joint and several note of Cressey and Mrs. White, yet it is so described in the plaintiff’s declaration, which is a part of the case; it has been so treated in argument; and we are inclined so to treat it in considering the case.

The effect of the judgment against Cressey is only to extinguish the holder’s claim on the note itself against him; and it does not affect the liability of the other signers. If a claim be satisfied as to any, it is satisfied as to all; but it may be extinguished as to some of the parties, and remain entire as to others. 1 Steph. N. P. 936. The result of this principle is, that the holder’s remedy against Mrs. White and her husband is upon the ilote alone.

It appears from the case, that Atkins never had any interest in the note; but it was indorsed by Tappan in blank, and the recovery was had on the note against Cressey in Atkins’ name for the benefit of Tappan. A note indorsed in blank is, in legal effect, payable to bearer; and as this note was indorsed by T'appan for the mere purpose of collection, if it had come back into" his hands without any judgment on it against Cressey, he might.have stricken out the indorsement and have recovered on the note in a joint action against both. Dugan et al. v. United States, 3 Wheat. 182. Bank of Utica v. Smith, 18 Johns 230. In this case, the note being merged in the judgment against Cressey as to him, no joint action could be maintained on the note; but as the note is joint and several, the action might well be brought on the note against Mrs. White and her husband. If the holder chose not to erase the indorsement, it is still, in legal effect, a note payable to bearer as to Mrs. White; and if Tapparntransmitted the note to the plaintiff for collection, with the blank indorsement unerased, a power was thereby conferred upon him to institute a suit on it in his own name, though for the use of Tappan. The power of the blank indorsement was spent only as to Cressey, by means of the judgment in New Hampshire; and as the note is the several lióte of Mrs. White, as well as the joint note of both signers, the indorsement may well be regarded as the indorse? ment of two several notes ; and the'same incidents must attach to the indorsement, as would have resulted, in case there had been two several notes.

Judgment affirmed.