Moody v. Threlkeld , 13 Ga. 55 ( 1853 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Was the paper sued on a promissory note? We think so — most clearly.

We recognize the general principle, that it is essential to the validity of a promissory note, that it should be certain as to the person to whom it is payable ; (Story on Pro. Not. §33, note 3,) and that parol proof is inadmissible to supply a defect in this respect. II. §35. Rut this does not mean that the person to whom the note is payable, should be made known by name, on the face of the note itself.

[2.] It is admitted, that a note payable to bearer merely, without mentioning any name, is a valid note;

[3.] And that a note issued with a blank, for the payee’s name, may be filled up by any Iona fide holder, with his own name as payee, and that then it will be treated as a good promissory note, to him, from its date. And it is upon the familiar maxim id cesium est quod cesium reddi potest.

[4.] And it is upon the same principle, that a note payable to the administrator of an estate, has always been held by the Courts of Georgia a good promissory note. A reference to the records of the Court of Ordinary, will show with unerring certainty to whom its obligations apply.

Suppose this note had been made payable to John H. New-land in his lifetime — the face of the paper would not disclose who was the legal representative of the payee, to whom alone payment was to be made, and who alone had the right to transfer it. In that case, as in this, recourse would have to be had to the records of the Ordinary. Indeed, there would be greater uncertainty in that case than this, for it would be doubtful whether the representative were executor or administrator ; whereas this paper shows upon its face the character of the trustee, namely, that he is administrator.

Or, take another illustration: suppose, as is frequently the case, that the notes of an estate are distributed among the heirs, would not the division constitute such a link in the title _of the holder, as to enable him to sue for, and recover the note ? And yet greater uncertainty would exist in that case, also, as to the ownership of the paper, or the person to whom it was payable, than in the present.

[5.] Is the Statute of Limitations a bar to this recovery ?

It is contended in behalf of the defendant in error, that Hill, the administrator of Newland, might have sued on this note, in his individual character, at its maturity. Indeed, the assumption in the argument is, that he must have sued in his own right, and that he could not have maintained the action in his trust character, and that no obstacle has occurred to the prosecution of his suit, and that failing to do so, the remedy is tolled or taken away.

But we apprehend the very reverse of this proposition to be true. Had the note been payable to Hill, with the usual addition of administrator, &c. he might have treated the note as his private property, and declared on it, as such. But even then, on the other hand, he would not be bound to have done this, but might also have sued in his representative capacity, and the defendant would have been estopped from denying the fact that he was administrator. And conceding that a proper mode of declaring on this note, would have been to have averred, that it was made payable to Jacob R. Hill, by the name and style of administrator on the estate of John H. Newland; still it cannot be questioned for a moment, that the note may be treated as the property of Newland’s estate, and sued on, as it has been, as such. And if this be true, it is an effectual reply to the plea of the Statute. But this note is payable to the administrator of the estate of Newland. The legal title vests in him, as trustee, and it is doubtful whether the suit could be brought by him in any other right. In this character, at any rate, he did sue within six years from the time the cause of action accrued. The case remained on the docket till August 1850, when it was non-suited. It was re-commenced by his successor, in January, 1851, within less than six months from the time when the first suit was dismissed. No plea to the disability of the plaintiff to maintain either the first or second suit, in his representative character, has ever been filed. Consequently the Statute has not interfered to save the defendant.

The Act of 1847, “ to amend and explain the several Acts for the limitation of actions and avoiding suits at law,” provides, that whenever any case now or hereafter pending in any of the Courts of this State, either at Raw or in Equity, commenced within the time limited by law, shall be discontinued, dismissed or the plaintiff therein become non-suited, and the plaintiff’s claim may be barred during the ponding thereof, by any law now in force in this State, the plaintiff may at any time within six months from such termination of the case, and not after, renew or re-commence the same in any Court having jurisdiction thereof in this State, any law, usage or custom to the contrary notwithstanding: Provided that nothing in the Act shall be so construed as to authorize the renewal of any case after a second discontinuance, dismissal or non-suit. Cobb’s New Digest, 1, 569.

It is insisted that according to the terms of this Statute, none but the plaintiff in the first suit can renew or re-commence the action, so as to be entitled to the benefit of the Act. Grant it. If suit is instituted by the payee of a note, and he dies after being non-suited, and the action is renewed by his administrator, is it not the same plaintiff ? So, where there is a succession of administrators, as in the present case, the trust is the same, although filled by different individuals. The cestui que trust, for whose benefit the suit is brought, being the same, and the cause of action the same, the plaintiff is the Same.

[6.] I will not quote upon my brother Alford, who as well as his modest opponent, has argued this case in a lawyer-like manner — that is to say, briefly, closely, earnestly, yet without declamation, and upon authority — the thread-bare saw, qui hseret, &c.

[7.] But I submit to his candor, whether this construction of the Act be not a little too strict ? We must, after all, in construing Statutes, deeds and óther writings, have some respect to the substance, and not adhere too closely to the letter. If by tbe grant of a remainder, a reversion will pass and e concesso, (Hobart 27. 2 Blade Com. 379,) would it not be to defeat the intent of this remedial Statute, to hold that successive administrators to the same estate, suing upon the same cause of action, were not the same plaintiff?

[8.] Bid the plea filed by the defendant in this case, and which was intended as a plea of non est factum, put the plaintiff upon the necessity of introducing proof as to the execution of the note ? In our judgment, it most certainly did not.

The plea should have been demurred to. For, admitting it to be true, it is no denial of the plaintiff's right to recover on the note. It confesses the note was signed in blank, to be filled up by Sims, to whom it was delivered for that purpose. The complaint is, that it was not filled up according to the intent for which it was signed. And the discrepancy or non-conformity is this, that Sims was to be principal in the note, and he, Threlkeld, security only: whereas it is alleged that they are made to occupy upon this paper a position the very reverse of this.

[9.] By an inspection of the note, it will be seen, that the defendant is mistaken in point of fact. It is true, Threlkeld’s name is signed to the note, but that does not constitute him, necessarily, a principal. But suppose it did, this is a matter exclusively between him and Sims. The note coming into the possession of a bona fide holder, will be held valid, as to him. Threlkeld signs a blank paper intended to be converted into a promissory note, and to be filled up by Sims for that purpose, into whose hands it is placed. He thus clothes his agent with a general power of attorney. No other construction can be placed upon the transaction, from the face of it. What has a bona fide holder to do with the private understanding between the parties ?

But, we repeat, there is nothing in the terms of this contract, contrary to the alleged agreement between Threlkeld and Sims. Which is principal, and which security, is a matter of no consequence to the holder of the paper. It may constitute a matter of proof hereafter between themselves. Both are alike liable to the holder. The plea does not pretend, that Sims was to add the word “ security” to Threlkcld’s name. Why did he not put it there himself, when he signed his name to the paper ?

The case of Batty vs. Carswell and Carsivell, (2 Johns. Bep. 48,) is relied on by defendant’s counsel. David Cars-well, one of the defendants, applied to Abner Carswell, the other defendant, to be his surety to the plaintiff on a note for $250, payable in six months, which he consented to do, and directed the witness to sign his name to such a note. Instead of that, witness put Abner Carswell’s name to a note for $250, payable in sixty days. And it was held that Abner Carswell was not liable, for the reason that a special authority must be strictly pursued. And such is the rule of the law. Andrews vs. Kneeland, 6 Cowen’s Rep. 354. Nixon vs. Hyserott, 5 John. Rep. 58. Beals vs. Allen, 18 John. Rep. 363. 3 Term Rep. 762.

But in the case at bar, the party signed his own name to a blank paper, and thus as to third persons, constituted Sims his general agent quoad the filling up the note. But viewing it in the light of a special person, • it was, if the plea be true, strictly pursued. Sims did no more than he was authorized to do by his principal.

As to the amendment, we see no reason why it should not be allowed, when the case shall have been re-instated. It is on the appeal and in the last resort, and the application seems to fall within the Fifth Common Law Rule of Practice. See General Index, by Cobb and Lumpkin, p. 584.

Judgment reversed.