The western Democrat. [volume] (Charlotte, N.C.) 1852-1870, 1857-05-19
MpoRrANr DECISION.

lH0POhxAN1 06I4S401a.
Among the Reports of the law cases de-
cided at the late term of the n. G. Supreme |
Court, we find the following decision, which |
the Fayetteville Observer publishes and
prefaces with an explanation:
The case is that of Dewey VS.. Cochran,
in which note negotiable at the Branch
of the Bank of the State at Charlotte, paya-
bic to its Cashier, T. w. Dewey, in the usual
printed form, but net filled up as to the
amount, was offered to the President of the
Bank for discount, and by him rejected
whereupon Caldwell and Higgins, the max
ers of the note, took it to Charleston, with
out the knowledge or consent of the sureties,
and filled it up with tie sum of S92|, and
passed it to Farrar & Brothers. i'll payment
of debt due by the former to the latter
The note was sent to Mr.. Dewey, the cashier,
for collection, and protested for non-pay-
ment Suit was brought by Farrar d Broth
ers, in the name of Mr.. Dewey, and judg-
ment recovered in the County Court. from
which Cochran, one of the securities. ap-
pealed. In the Superior Court, Judge
Bailey directed a nonsuit, from which the
plaintiff appealed.
The case was argued by Osborne and
Boyden for the plaintiff, and by Wilson for
the defendant.
Chief Justice Nash delivered the opinion
of the Court, affirming the nonsuit.
1.-THE sureties bound themselves. (says
the Chief ustice,) to pay 10 Thomas Dewey
or his order, the sum mentioned in the note.
| To the validity of every contract 1t Is es-
| sential that it receive the assent OF the par
| ties, to be bound either payers or per
| formers. Parsons on Contracts. 59S. "a
| this case it is not pentend"d that! Thomas
+ Dewey ever accepted the note. On the
contrary, the bank, through its president,
and whose officer Mr.. Dewey was. refused
to receive the note. There is then, no con-
tract between Mr.. Dewey and the defendant
| Mr.. Dewey has not the legal title to the
| note. But the action is brought not for
the benefit of Mr.. Dewey or the bank, but
| for the use and benefit of Farrar u Broth
ers, to whom it was assinged by Haglns.-
| Did they, by this agreement, acquire such
an interest in the note as to enable them to
| bring this action in the name of Thomas
| Dewey, the original payee We think they
did not. The note in question is made
| PAYABLE and negotiable at the branch OF the
hank of the State, at Charlotte. What is
the meaning of the word negotiable 1t is
| admitted that the note is in the usual form
of such instruments. Put into plain Eng
fish, the word negotiable means that the
money is to be borrowed from the bank de-
| signated. The sureties bound themseles
that if the bank would discount the note
they would pay it at maturity; but they do
not promise to pay any other holder OF the
note who does not claim through the bank.
MANY reasons might exist why they would
| be willing to incur that responsibility when
they would not be willing to incur 1t with
q private individual. If the note was DIS
counted at the bank, they knew that after
ninety days, they could take up the obliga-
ton or refuse to prolong their responsibility
by joining in renewal OF the n"te' ana
then the bank might, and would, proceed to
collect If. Ifnegotiated to a private indi-
vidual, wears might pass before they know
where it was, or before it was presented for
nayment, nor could they. until it was pre-
scented for payment, know certainly that II
was outstanding; whereas, if i'll the bank
he would know where to go, and he could
at any time after maturity, ascertain whether
if had been taken up and discharged by his
nr;ncipal, and if not, be enabled to secure
bimsoIf. IT never was intended by the de-
fopdapt that the note should be thrown into
market in any other way than as pointed
ont in his contract. The principle control
ling the case is fully stated in Respass v
, Latham, Bus. Rep. 1873. That was an ac
ton of debt upon sealed instrument which
was navable to Mrs. Parker. When pre-
sented to her, she refused to lend the money
upon it, and it was returnad to the OBJ
Tigers. Subsequently one Of the obllgers
and for whose use the money to be ralse(
was intended, induced the payee to endorse
it without recourse, and the money was al
3 vanced upon it by the plaintiff. The Cour
= saw, The instrument, in its original con
o coction. was not intended by the defendant
to he thrown into market to raise funds from
env one who would advance them, but from
a specified individual, and that person re
a fusing to lend money upon it, 1t must o.
shown that the defendants agreed to til
o new intent, that is, becoming bound to Kes
pass, which does not appear
"In our case, the source from which tn
e money was to be borrowed is specified Il
+ the instrument. to wit, the branch bank o
o the State. at Charlotte ; and the bank nav
ing refused to discount it, the note, as t
the defendant, the surety, died, and coul
e not be revived by transfer to tarrar c
: Brothers without his assent. OF all this tn
: beneficial owners were apprised from tn
face of the note. At any rate, the tao
that Mr.. Dewey, the original payee' a
cashier of the bank, had not endorsed II
: taken in connection with the tenor of til
f note, was sufficient to put them on the en-
~ | Quiry."