Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1848-06-08

issory note is expressed to be payable, FOR in |
stance, TO n. b. agent Of c. d., both agent and
principal being named in the note. In such
case it is decided, that the principal cannot sue
though named. 1t is held that note payable
to a person by name though described therein
as the agent of another is note payable TO the
person SO described as agent, and that suit up
on it must be in his name, or IN the name Of his
indorsee. The second class is, whore promis-
sorry note is made payable to The cashier of
particular Bank, giving the name of the Bank
without the maine Of the cashier In such case,
it is determined, and very rightly as think, that
the interest and right Of action are in the prn.
cipal who is named, rather than in the agent who
is not named The third class is, where a bill!
or note is made payable to, or is signed by, a per-
son desig mated agent generally, as "A. Il. aren't,
without naming the principal. In such case, it
is held, that the simple addition Of agent and of
course the simple addition of cashier without
any specification whatever of the name OF the
principal, will not authorize the admission Of pa
rol testimony to shew who the principal is, and
make him party to the instrument
There may be, and indeed are, decisions in
some of the state courts, not entirely reconcile
able with the doctrine of the authorities which
have been cited and referred to; but however
much such local decisions may DC entitled to
consideration and respect on account Of the
source from which they proceed, they can have
no influence upon the question before us, so far
as they are at varencc with the general pre-
vailing rule Of commercial law. In suits in the
courts of the United States, as is laid down in
SiOiG Us. Tyson, l6 Pct l., the true nerpreta-
ton and effect of contacts and other instru-
ments of a commercial nature, are to be sought,
not in the decisions OF the local tribunals, but
in the general principles ard doctrines of com
merclal jurisprudence.
Upon the whole, it appears to me- that the
true rule Of law, as deducible from the adudged
cases. American as we'll as English, is that no
person. although in fact principal or partner,
can sue or be sued, upon bill or negotiable
note, unless he appears upon It's face to be
party 10 it. A promissory note, according to
the expression Of very great judges, partakes in
some measure OF the nature of a specially, i'm
porting a consideration, and creating debt or
duty by It's own proper force. Being ASST -n1ble,
and passing by mere Endorsement, it IS necessary
that The parties TO it should appear, and be known,
10y bare inspection of the wrtlrg; for 1t Is on
the credit of the names appearing upon it thlt
it obtains circulation. 1t is for these qualities,
and on these considerations, that it is dstin-
guished from written simple contracts in gene
raj, and made subject to different rule.
The note III question here is perfect instru-
ment, without ambiguity in form or purpose, and
must have operation and effect according TO the
terms in which it Is expressed. 1t is made pay
able to "Sa nuel Jaud)n Esquire, Cashier, or
ORDER" The promise therefore is TO pay him, or
the person TO whom he shall order it to be paid
aud 1t would be repugnant to the terms Of the
instrument to allow the Bank of the United
States or any one else without his order, to de-
mand and enforce payment of it by suit. The
Bank is not named in The note at ALL either as
principal or otherwise nor can 1t be inferred,
from anything contained in the note, that it was
made even in trust or for the benefit Of the Bank,
or that the Bank has any interest Whatever in it.
10 let in parol evidence to shew that the Bank
is the real principal, and hold that 1t may sue
upoa the note as such, would be to subject ne
gotiable paper 10 the very uncertainty the law
intended to avoid. 1t would be putting proniis.
sorry notes upon the footing OF other written
SIM e contracts, and PROSTATE entirely the dis
/, tinclion, which sound policy, as well as the
ture and purpose of negotiable securities de-
mauds should be kept up between the two class.
es of cases
AS the plaintiffs cannot be regarded as the
payee of tue note 1t is almost supernuous to say,
that the note is neither evidence of money had
end received to their use, nor evidence of an ac-
count stated with them. The note creates no
prlvlty whatever between them and the defend
ants and we have already seen. that, by the
bill OF particulars, they arc limited to the note,
t and cannot go upon the antecedcnt cause of &C
ton.
f 1t is Insisted, however, that there is evidence,
aside from The note, of an actual stated account,
showing the balance due, and that that, with the
note, Is sufficient To enable the plaintiffs TO re-
. cover under either count. This might be SO, if
the plaintiffs, though not the payees, were the
, real owners OF the note, and there had been an
{ actual accounting with them personally, or
through their agents. But itappears that the ac-
g counting, whateverthe was was with Robertson
In who tbo -, g. /.
= Bank IN the note, with the other effects of the
n Bank, had been assigned in trust for certain
J, purposes, and who, for aughi that appears, are
a sui owners OF the property of the note There
n Is no evidence that the account of Aprl-40,
i winch was prior to the assignment, was ever de-
livcred or sent to the defendants aud as to the
c accounts Of Apri-'42, and Noyember-'43
t, each is stated and rendered by the assignpes,
d ana each states the balance as due to them. The
e etter to Peck, ncosing the account Of April--42
n is signed q" Herman Cope, Agent for J. ROBBERS
= ton ct al, Trustees" and states the account to
It be an account with them. The letter to Peck
d OF May-44 is signed in the same way and
n speaks of the account of November --43, as an
Y account with the same persons The accounts
o being stated aud rendered as accounts with
d the asSlgnees, to waom the property Of the note
e belonged, do not well see how the accounts
e can be treated as stated accounts OF money due
J ana owing upon the note TO the plaintiffs, or as
o evidence OF Indebtedness to them. Even viewed
j, as implying promise which would follow the
1t right of acton on the note, simply as evidence
n Of Indebtedness on the note generally, it would
: not help the plaintiffs; for, as we have already
y seen, they are not the payees of the note, anC
il have no right Of action upon it.
er If there had been an account stated by the
lie defendants directly with the plaintiffs while
ID owners of the note, recognizing their right to bt
OF accounted with tor the note, or such an admis
OF sion of their title to the money cue upon it al
ID would amount or be equivalent to an express
x pro Mise to pay them, that a cause of actor
le might be considered MS having accrued to aar
or vested in the plaintiffs before the assignment
te do not mean TO say, that, IN such case, the as
ut signees might not sue and recover upon sucl
r cause Of action IN the name of the plaintiffs. -
IN How thai night be, It Is unnecessary give AM
IS, opinion, because The evidence presented in AM
to Just view of 1t, falls short, it appears to me
e. of making out any such case.
I'd q. The other note given in evidence is thu
c. promlssory note specified in the bill of particu
lars, executed by Lyman 81 Cole to the defend
lis ants, and by them Endorsed to the plaintiffs Tn,
~ plaintiffs beng lndprsees and the defendants in
e. dorsers, the note was PROFESSIONALLY admissible
| in evidence under the count for money had anc
49, received, if MT under the other count But the
-, HAM LIZ.