Thayer v. Buffum

52 Mass. 398

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1846
• Status: Published

Opinion

Shaw, C. J.

By St. 1839, c. 131, § 1, it is provided, that “ in any action brought upon a promissory note payable on demand, by an indorsee against the promisor, any matter shall be deemed a legal defence, and may be given in evidence accordingly, which would be a legal defence to a suit on the same note, if brought by the promisee.” By the use of the term “ defence ” in this statute, the legislature looked to such legal and equitable considerations as would constitute a good answer to the suit if brought by the promisee ; such as payment, set-off, and the like; but it does not extend to a mere disability to sue.

It is well settled that a note made by a partnership to one of its own members, or his order, when indorsed, will enable the indorsee to maintain an action upon it. It is the promise of all to the order or appointee of one; and when the appointment is made by an indorsement, it is a valid contract with the indorsee. Pitcher v. Barrows, 17 Pick. 361. Smith v. Lusher, 5 Cow. 688. Blake v. Wheadon, 2 Hayw. 109. So of a note payable by one to his own order. Little v. Rogers, 1 Met. 108. The promisee himself (Bates) could maintain no suit, not because the partnership would have any legal or equitable defence, but on account of the inflexible rule, that the same person cannot be plaintiff and defendant in the same suit at law. Eastman v. Wright, 6 Pick 316 Collyer on Part. (1st. ed.) 383. The statute intended to include such matter of defence as had before been considered doubtful in case of dishonored notes sued by an indorsee. Sargent v. Southgate, 5 Pick. 312. A note payable on demand is open to any defence which could be made to a suit brought on it by the promisee, if the promisee were not disabled from bringing such suit. New trial granted.