Cleveland Co. v. Chittenden , 81 Conn. 667 ( 1909 )

The defendant complains because, as he says, the complaint counts upon a special indorsement, while it was permitted to be supported by proof of a blank indorsement. This contention rests, in the first place, upon a severely literal interpretation of the complaint, and one which overlooks the fact that the note, with its indorsement thereon, was embodied in it by reference and annexation as an exhibit. Pleadings are not to be so construed under our Practice Act. Price v. Bouteiller, 79 Conn. 255, 257,64 A. 277. This pleading easily yields to the reasonable construction — consistent with its manifest purpose and the ends of substantial justice — that it avers that the plaintiff became the holder of the note through its indorsement and delivery to him by the defendant, its maker, with the intention of passing the title thereto. "A transfer is defined to be the act by which the owner of a thing delivers it to another person, with the intent of passing the rights he had in it to the latter."Robertson v. Wilcox, 36 Conn. 426, 429.

The defendant's contention also overlooks our rule that immaterial variances are to be disregarded. Practice Book (1908), p. 245, § 149. This is an action against the maker. The face of the instrument determines the extent of his obligation. The indorsement is significant only as indicating the plaintiff's right to enforce that obligation as the holder of the note, and the extent of that right; that is, whether it be unrestrictive, restrictive, qualified or conditional. General Statutes, §§ 4203-4209. The indorsement here set out was neither restrictive, qualified, nor conditional. Such being the case, it was absolutely immaterial to the creation of the relation between the defendant as the maker of the instrument and the plaintiff as its holder, to the character of that relation, and to the determination of the rights and obligations of the parties as between each other through that relation, whether the channel through which, in strict legal contemplation, the plaintiff's ownership was derived, was that of a special indorsement or a blank indorsement which the plaintiff might at his pleasure transform into a special one, or whether or not a blank indorsement had in fact been transformed into a special one. Whatever distinction could be pointed out is one which lies wholly within the domain of technics, and is of no practical importance.

There is no error.

In this opinion the other judges concurred.