Union Bank v. Morgan

2 La. Ann. 418

• Court: Supreme Court of Louisiana
• Decided: April 15, 1847
• Status: Published

Opinion

The judgment of the court was pronounced by

Slidell, J.

This suit is brought on several promissory notes, drawn by Briggs and endorsed by the defendant. All these notes stipulated interest from) maturity, at the rate of seven per cent per annum. They were all payable at the office of the bank at Covington. All these notes are proved to have been discounted by the bank for the benefit of the maker, the endorser having endorsed-for his accommodation. It is also proved that Briggs was insolvent at the maturity of the notes. The endorser was blind at the time of endorsing these notes and of the execution of certain other instruments, which will be noticed hereafter ; but the genuineness of all his signatures is incontestrbly proved, and there is no evidence in the record to show that any fraud has been practiced upon him in obtaining the signatures. Morgan had been for many years, and before he became blind, an accommodation endorser for Briggs, and the notes sued upon-were renewals of previous notes, upon which Morgan was qndorser. Various points have been presented by the counsel for the defendant, which we- proceed^ to notice.

Upon three of the notes, on the respective days of their maturity, there-was endorsed an agreement, by which the endorser declared that he waived' the formality of protest, and held himself bound as though the note had been-legally protested and he duly notified. One of these agreements further states expressly, that he waives the formality of notice. The legal effect of all these agreements is the same, and if binding a.t all, place the endorser in the same position as if formal protest had been duly made, and due notice given. These agreements, however, were not signed by Morgan, but by his son John Joseph Morgan, as attorney of the defendant; and two questions are here presented is the execution of the power of attorney proved, and, if so, did the instrument creating the agency authorise the attorney to sign such agreements ?

The power of attorney was executed before a notary public and two witnesses, and on its face purports to be an authentic act. But its admissibility, as an authentic act, was destroyed by the plaintiffs’ acknowledgment that, at the date of the act, Morgan w as blind. The court properly refused to admit it in evidence as an authentic act, under article 2231, which declares that “the authentic act, as relates to contracts, is that which has been executed before a notary public, or other officer authorised to execute such functions, in presence of two witnesses, free, male, and aged a least fourteen yoars, or of three witnesses, if the party he hlincl.” Upon this refusal of the court, the original act was produced, the signature of Morgan was proved by one of the subscribing witnesses, and it was then received in evidence, the defendant excepting, “ that if it could not be received as an authentic act, for the want of a sufficient number of witnesses, a fortiori it could not be received as a piivate act.” The court did not err. The blind are not declared by our law incapable of contracting,

■“ All persons have the capacity of contracting, except those whose incapacity is specially declared by law. These are persons of insane mind, slaves, those who are interdicted, minors, married women.” Civil Code, art. 1775. Article 2231 is expressly affirmative of the capacity of the blind to contract. The requisition of three witnesses touches ouly the authenticity of the instrument — - its competency as proofed- sc. The article of the Code immediately following declares : “ That an act which is not authentic through the incompetence or the incapacity of the officer, or through a defect of form, avails as a private writing, if it be signed by the parties.” Here the act was signed by the party; his signature is incontestibly established by the subscribing witness; and there is no proof, and not even a suggestion, of fraud or mistake. It must also be observed that the execution of the power cannot be considered as resting upon the testimony of a single witness. Various circumstances established by the evidence in this cause corroborate the proof of execution ; and not the least of these is the action of his own son, as the father’s attorney. To disbelieve the execution of the instrument would involve, as a necessary consequence, that the son had attempted the commission of a fraud upon his father. We can hardly suppose that counsel, had they viewed the matter in this light, would have presented an argument which, if sustained, would save the parent by the dishonor of his child.

Considering the execution of the power of attorney as duly established, what is its legal effect? Did it authorise the son to sign the agreement of waiver above stated? The power is very full and comprehensive. After conferring tho usual authority to collect debts,to give acquittances, to compound,compromise, &c., it contains these words : “ Also for him and in his name to sign any bond, obligation, contract, or agreement, or other paper whatsoever; to draw and endorse promissory notes, to draw and accept bills of exchange.” Then' follows an authorisation to buy and sell all kinds of properly, “and also, for him and in his Maine, lo do all such oLher acts, matters and things, in relation Lo his property, estate, affairs, and business of every kind or nature whatsoever, as he might or could do, if personally present and acting therein; it being his intention to commit to the said John Joseph Morgan the entire management, care and disposition of his property and affairs, as fully and absolutely as he has now the management, care, and disposition of them, and that (his power shorild be understood and taken in its most comprehensive sensed’ We are of opinion that this power fully authorised the agreements in question. The authority to sign any bond, obligation, or agreement'whatsoever, standing1 side by side with the authority to make even a new note, and fortified by the broad declaration that the whole power should be understood in its most comprehensive sense, comprehends, if language has any force, the agreement of waiver made with regard to notes already executed by the party himself; and any other interpretation would make such powers of attorney, instruments of deception. It cannot be said that, in the present case, there was even an indiscreet exercise of the power of the-agent. Briggs was insolvent, and the waiver of the formality of protest and notice was a saving of expense to the pi-incipal.-

Á portion of the notes sued upon were protested, and notices were given by Lyman Briggs, parish judge and ex officio notary for the parish of St. Tammany ; and the protest and- certificates of notice, signed by Briggs, in his official capacity, being offered in evidence, they were objected to, as appears by the bill of exceptions, on the ground that Briggs was incapable ofso doing, because he was the maker of the notes and could not pay and receive at one and the same time; and was, also incapable of giving notice: So far as the question of presentment is concerned, the bill of exceptions and the argument of the learned counsel upon it, are based uopn the erroneous assumption that a presentment to Briggs personally was necessary ; and, these premises being assumed, it is contended that Briggs could not make a demand' of himself, and that the mandate to do so was a vain and void mandate-. When a note is made payable at a bank, it is a good-demand if made upon the cashier of the bank, as was done i»> this instance.

In support of the general position of the incapacity of a public notary to certify his own personal default, the learned counsel has exhibited no textual provision of law, and the analogy in a case in which the Code has .expressly treated of the subject is against him. Even in the graver duties of the judiciary, a judge is not incapacitated by his personal connection with the cause. If he be interested in the cause, he may be recused, or may recuse himself; but the law does-not absolutely incapacitate him. The public officer and the1 individual are not identical. There-wae, in this case, no conflict of the official duty of the notary with his private interest; for whether the endorser was discharged, or held outlie note, was immaterial to him as maker and primarily liable. As to Briggs himself, he was acting against his own interest in recording his own default.

Another ground of exception to the admissibility of the protest and certificates of notice waa, “that there was no regular record of the protests and notices, made in a separate book, and recorded in the presence of two witnesses by said notary, as is required by the statute of 1821.” It appears by the bill of exceptions, “that the parish judge was called upon to produce the book of protests, and thereupon brought into court a large bundle, amongst which were three sheets containing exact duplicates of the three offered in evidence ; these were loose sheets, not arranged in the order of their dates, but some that purported to be protests of the year 1842, were placed in the bundle after others that were dated in the year 1844; the whole tied in bundles, and placed between two pasteboards, which had the appearance of the binding of a book.”

The act of 1827 does not require the keeping of a separate book for transcription and record; and under it the original protest and certificate of notice given to the bank, or the duplicate original kept by the notary, was competent evidence.

It is objected that it does not appear from the protest of the notary, that he had the note in his possession when he demanded payment. It is manifest, not only from the evidence of the cashier but from the protest, that the notes were held by the bank at maturity. The notary declares in each protest that he went to the bank on the-day of maturity, at the cashier’s request; and he declares that the cashier was the holder .of the note, ,of which the copy annexed to the protest -is a true copy. These declarations show -that the note was in the hands of the cashier at the time, and -that the notary must have taken a copy of it, and-we are at alossto see the difference'between the-cashier’s showing the note to the notary and asking him to protest it, and putting the note formally into the manual possession of the notary before he made the demand. If the bank had not been the holder, and the place of payment -had not ;been at the bank itself, the objection would have been material.

The notices were mailed at Covington, in the parish of St. Tammany, addressed to the endorser, at Madisonville, parish of St. Tammany, La. Morgan lived about two miles from Madisonville. It was the post office nearest to his residence, and the -notice was properly thus mailed and addressed.

Morgan had no right to have the proceeds of the notes when discounted passed to his credit, it being shown that he was the accommodation endorser for Briggs, to take up whose protested paper, endorsed by Morgan, the notes were discounted.

It is therefore decreed-that the judgment of the court below be reversed.; and it is decreed that .the plaintiffs recover of the defendant David B. Morgan, the sums following, and interest thereon, at the rate of seven per centum per .annum, from the respective dates hereinafter mentioned, until paid, to wit: -the sum of $600, with interest at said rate thereon from the 21st day of June, 1842 ; the further sum of $220, withinterest at said rate thereon, from the 27th day of June, 1842; the further sum of $1,450, with interest at said rate thereon, from the 30th day of July, 1842; the further sum of $450, with interest at said rate thereon, from the 15th day of August, 1842; the further sum of $140, with interest at said rate thereon, from the 22d day of August, 1842; the further sum ■of $380, with interest at said rate thereon, from the 19th day of October, 1842; .and the further sum of $460, with interest thereon at said rate, from the 29th day of October, 1842; and costs in both courts.

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Eustis, C. J., did not sit in this case, being interested.