Williams v. Gilchrist

11 N.H. 535

• Court: Superior Court of New Hampshire
• Decided: July 15, 1841
• Status: Published

Opinion

Upham. J.

*

In this case, the suit is brought against Gilchrist & Harvey, but the note declared upon bears the signature of the firm of Brewer, Gilchrist & Harvey. Notwithstanding this, the plaintiff does not claim to hold the firm, but declares that the defendants, by their note, by them subscribed, by the name of Brewer, Gilchrist &. Harvey, promised the plaintiff, &c. The declaration is an admission that the firm, whose partnership name is subscribed to the note, did not execute it, but that it was the promise and act solely of Gilchrist & Harvey, and binding on them alone.

Were the allegation sustained that these defendants both participated in giving the note, it would be immaterial what signature they affixed : they would be bound by their promise under whatever name they chose to assume. 4 N. H. Rep. 239, Grafton Bank vs. Flanders.

But the case shows clearly that the signature, Brewer, Gilchrist & Harvey, was affixed to the note by Harvey, without Gilchrist’s knowledge, act, or assent, and Gilchrist is in no manner bound by it. Had the declaration been against Harvey alone it might have been sustained, but it cannot be sustained against them jointly. The suit, therefore, so far as it is founded upon the note, fails entirely.

But there is also in the declaration a count for money had and received, and the plaintiff claims to hold the defendants on this count to recover the consideration of a former note signed by Harvey as principal, and Gilchrist as surety. This note, if produced, would sustain the count for money had and received. It is disclosed, however, in evidence, that the note has been given up by the plaintiff, who was the endorsee of the note, to Harvey, the principal, and has been cancelled and destroyed; and that the note declared on in the first count was received by the plaintiff in payment of it.

The new note, however, was received as payment by the firm, whose name purported to be affixed to it ; but their name not having been legally affixed to it, the note was wholly void as against them, and being so, could not operate as a discharge or payment of the first note. The exchange is wholly inoperative, and the plaintiff has the same right to recover on the original note as though it had never been surrendered.

It is hardly necessary to cite authorities to this point. In the case, Manufacturers & Mechanics Bank vs. Gore, 15 Mass. R. 75, it was holden that where one of two co-partners obtained money on a note payable at a future day, signed by him with the name of a firm, with a forged endorsement of a third person, the lender was entitled, on discovering the forgery, to an action for money had and received, even before the maturity of the note, against the parties to whose use the money had gone. This was on the ground that the note, being in part a forgery, was wholly void, and the plaintiff might recover precisely as on delivery of money to the firm payable on demand.

Where a payment of a note is made in counterfeit bank bills, the payee may recover of the promiser the amount of' such bills in an action for money had and received ; that is, he may go back to the original consideration of the note, on the ground that it is undischarged. 6 Mass. R. 182, Young vs. Adams; 2 Johns. 455, Markle vs. Hatfield; 9 N. H. Rep. 365, Fogg vs. Sawyer; 10 N. H. Rep. 505, Jaffrey vs. Cornish.

There is no doubt on this point; but it is contended that Gilchrist, being a surety upon the note, there was here a farther day of payment given, and that he should be discharged for that reason.

It is perhaps a sufficient answer to this to say, that in this case the plaintiff retained the liability of the surety on the new note, or at least so supposed. There was no intention to discharge the surety, by taking other names merely. The plaintiff supposed he held the surety still liable ; and farther, both notes rvere payable on demand, so that there was no agreement for delay, and no time when suit might not have been brought immediately upon the claim. We think, therefore, the surety has not been discharged on this account.

It is said that the surety is prejudiced by these proceedings, inasmuch as he is now deprived of the means of obtaining his note, to pursue his remedy upon it against the principal. It would doubtless be a convenience for him to take up the note, and exhibit it in evidence against the principal ; but casualties are of frequent occurrence, by which notes are lost or destroyed, so that they cannot be surrendered on payment; and we know of no rule of law that gives any greater right in this respect to the surety than to the principal.

It appears from the case, that the signature of the note declared on. was not denied at the first term of the court. The rule upon this subject is, that “ the signature and endorsement of any instrument on which the plaintiff shall declare, will be considered as admitted, unless notice shall have been entered upon the docket at the first term of the court that they are to be disputed.”

In this case the name, though affixed by a member of the firm, was placed there without any authority of the firm, for a debt for which they were not responsible. The note was, therefore, wholly void as against them, and the signature should have been denied on the ground that it was not placed there by competent authority.

The court incorrectly permitted the evidence to be received without such notice. It, however, operated as no essential prejudice to the plaintiff, as he was merely thrown back upon his other count, and recovered under that his whole claim, except for a trifling difference in the amount, which in fact did not exist, against the only responsible defendant in the suit.

According to the agreement in the case, judgment should be rendered on the verdict for the amount of the first note and interest.

Judgment on the verdict for the plaintiff

Woods, J., having been of counsel, did not sit.