Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-04-20
COURT DECISIONS.
Notes of Cases Recently Decided,
Which are of Interest to
Aa Our People.
DIGESTED BY W.. B. MARTIN,
Exclusively for Virginian- Pilot.)
CUSsEN v. BRANDT & DUNLOP.

\E4cluSlvely Tor Virginian-Pilot)
CUSSEN v. BRANDT &c DUNLOP.
Supreme Court of Appeals of Virginia.
March 16, 1899.
1T is ESSENTIAL TO A SALE THAT
BOTH PARTIES CONSENT TO IT.
BUT THIS MAY BE INFERRED
FROM THE CIRCUMSTANCES
THE DELIVERY OF A NOTE FOR
VALUE TO ONE WHO Is PRl-
MAR1LY BOUND ON IT, is AN EN-
ENDORSEMENT OF THE NOTE.
A PURCHASER OF AN OVERDUE
NEGOTIABLE NOTE TAKES ONLY
THE TITLE OF THE SELLER.
AND SUBJECT TO ALL EQUITIES
TO WHICH II WAS SUBJECT IN
HIS HANDS.
A MATERIAL CHANGE IN THE
CHARACTER OF a NOTE, APPA-
RENT ON IT'S FACE, IS SUFFI-
GENT TO PUT y PURCHASER ON
ENQUIRY.
fhis was Il suit in chancery in which
arose the question as To whether two
notes were liens on certain real estate,
or had been paid and cxtinguished. The
lower court held that the notes were
valid liens. and there was an appeal.
The Court says: The matters involved
III this appeal depend upon the question
whether the notes in controversy were
paid. or purchased. by the appellee
ELAN, when he obtained them from the
City Bank. Whether Il transaction like
this is payment or n purchase Is
question of intention, of fact rather
than OF law, and is to be settled by the
evidence. 1t Is undoubtedly true that
1t is essential to sale that both parties
Should consent 10 it: but it is as difficult
to see how there can be n payment and
an eXtinBuishment thereby OF a debt, by
u stranger who is under no obligation
10 pay, as 1t is to see how there can be
sale without an intention to SELL This
assent, however. need not be expressed
nor shown by direct evidence. 1t may
be inferred from the circumstances at
tending the transa elton, and often is
The authorities hold that transaction
like that under considerat ton is pur-
chase and not payment. 1t was said
by the Supreme Court of the United
states, in a case similar to this, that
In cases like that before us. where the
Intention to continue the existence of
the note and not to cancel it by payment
Is made evident, when the money is
paid to the collecting agent appointed
to receive 1t, and the owner OF the note
receives the amount due to him, the au-
thoritics sustain the transaction rs n
payment" When one primarily bound
for the payment of n note takes it up,
1t is a payment-an cXtinquishment of
the note. no matter what his intention
may have been. The notes in question
having been purchased by Elan. they
are not cXtinguishcd but are existing
liens upon the trust subject.
Elan ana Grmmell insist that the de-
cree appeGl al from is erroneous, in so far
as ii prov that Marburg shall have
priority over them. This contention we
do no; think can be sustained. The
notes held BY them respectively were
purchased by ELAN under circum-
stances which make it equitable that
their payment should he postponed UNI
Ill the notes held by MarburS have been
paid. When ELAN acquired them. one
note was overdue and held by the City
Bank for collection. The note being
overdue he acquired nothing but the ac-
tual right ana title OF the City Bank:
he took it subject to all the equities to
which 1t was subject in its hands. The
other note had not yet maturcd, but it
had upon 1t the restrictive endorsement
of the Baltimore bank. cancelled ac-
cOrdinG To f.lam's statement, but still
both endorsements were legiblc through
the pen marks by which they were can
cclled. These endorsements destroyed
the negotiabilty of the notes. and was
notice to persons dealing with the City
Bank that it held them for collection
only. The cancellation of the endorse
ments changed the character of the
notes and restored their ncgotiablity.
This was n material change in the
character of the notes apparent upon
their face sufficient to put Elam upon
enquiry, which enquiry, if pursued.
would have disclosed the fact that the
City Bank only held the notes for col
lection, and had no authority to sell
them. Affirmed.