Talty v. Freedman's Trust Co.

delivered the opinion of the court:

Replevin was instituted by plaintiff to recover a claim against the corporation of Washington, duly approved, passed upon and allowed, in amount six thousand ninety-six dollars and seventy-five cents. Plaintiff was anxious-to have money in the early part of 1.871, and prevailed on M. H. N. Kendig to raise the sum of three thousand dollars. He executed his note, payable to the order of himself, dated January 6,1872, at the First National Bank of Washington, D. C., for three "thousand dollars, interest ten per cent., sixty days after date, *528indorsed said note, and at the same time delivered and indorsed to said Kendig, as collateral security, a paper denominated a voucher, signed by proper officers, evidencing a claim of plaintiff against the corporation of Washington for six thousand ninety-six dollars and seventy-five cents, the consideration of which was shown by another paper to be for work done by said Talty, and which he had indorsed.

On January 26,1872, said Kendig sold said claim or voucher to the defendant, a banking corporation in the city, for ninety-six cents on the dollar.

It is not pretended or claimed that the bank, or any of its officers controlling negotiations, knew of any understanding or arrangement, if any was made, between Talty and Kendig, other than the indorsement, which was in full and unrestricted. The plaintiff now claims that it was agreed between him and Kendig that if “ plaintiff, failed to pay his note at maturity, the said Kendig should have the right to buy the collateral at the rate of ninety cents on the dollar, if he so desired.” This is his own statement in evidence. He further states that he offered to pay Kendig the amount of the note a day or two before its maturity, but Kendig refused to receive such payment, or to deliver to him the note which he (Kendig) had taken up, or the said collateral.

There was no mark or memorandum on the voucher indicating that it was a mere deposit as collateral, but the indorsement was in blank. When demand was made on defendant to surrender the voucher, no tender was made of any money. Defendant gave evidence tending to show that it was agreed between plaintiff and Kendig that said Kendig might, if he elected, sell or take the said voucher at ninety cents on the dollar at any time before the maturity of the note; and that, after Kendig sold the voucher and took up the note, he offered to pay plaintiff the balance of proceeds of the voucher at ninety cents, to be computed, deducting the amount of the note, which plaintiff declined to accept. The circuit court charged the jury to retiirn a verdict for defendant ; and to that plaintiff excepted.

On the plaintiff’s own evidence, what was there for a jury to pass upon? Here was an indorsement in blank of a paper, the character of which, in all towns, is used upon *529which to raise money. This class of evidences of debt may not in strictness be denominated commercial instruments, but they have certainly assumed somewhat of a negotiable character, or at least they so far enter into the facilities of obtaining and borrowing money that no court will be found to cast the burden of litigating as to the equities between the parties upon an innocent bona-fide holder for a fair valuable consideration.

The questions which might arise between Talty and Ken-dig certainly cannot all arise in this suit. Persons who put forth paper upon which they wish to raise money should always mark it, designate it, if they wish to control it. And when they do this, how much money could be raised on a ten-thousand-dollar security in three months ?

Hard, unconscionable bargains may be relieved against, and the party who is guilty may be controlled. But no rule authorizes the visitation of a man’s , own error upon a, bonafide third one. In this case a fair price was paid by the bank for the property in the paper. Plaintiff has not offered to return any part of the money which was given by defendant for the evidence of debt. On the plaintiff’s evidence alone, we are bound to find full authority in his broker, Kendig, to sell and dispose of the vouchers. If this be so, the court would have been too liberal to have sent the jury out to consider.

Every rule with which we are acquainted, as sustained by justice and the rigidness of legal technicalities, demand an -- approval and affirmation of the judgment of the circuit court, and the affirmance of that judgment is hereby ordered.

after stating the case, delivered the following dissenting opinion:

It will be seen that, upon this recital of facts, a most material discrepancy appears from the record as to what the nature of the arrangement was under which this collateral was delivered to Kendig. The testimony on the part of the plaintiff is that this certificate of indebtedness was simply delivered over to Kendig as collateral security for the payment of the $3,000 note. The testimony for the defendant *530is, on the contrary, explicit to show that this certificate of indebtedness was delivered to him upon condition that he was at liberty to sell and dispose of it, at any time he might elect, at a price not less than ninety cents on the dollar.

If the true version of this transaction is that claimed on the part of the plaintiff, and which his evidence tends strongly to prove,' then I think the judge erred in directing a verdict of the jury for the defendant. If the true transaction was such as the evidence on the part of the defendant tended to show it, the verdict was right. According to that, said Kendig was authorized to sell said voucher or certificate of indebtedness at any time, even before the maturity of the note.

It is agreed that the sale of the voucher was actually made before the maturity of the note.

I understand that the cause was decided in the court below against the plaintiff; that no legal tender strictly in conformity with the rules of common law was made, before suit brought, of the amount of the note.

If the transaction between the plaintiff and Kendig was as the plaintiff’s testimony tends to show; no tender of any kind was a necessary condition to maintain a suit to recover possession of this certificate of indebtedness; and to show this I will only cite a case of Wilson vs. Little and others, 2 Comstock, 443; a case precisely in point, unless the defendant got a better title to this certificate of indebtedness, or chose in action, than Kendig had, which will scarcely be pretended, as the vendor of the personal chattel can give to the vendee no better title than he himself possessed.

The error of the court was, I think, therefore, in taking the cause from the jury, and not submitting to them the question whether the testimony on the part of the plaintiff was the true version of the agreement between the plaintiff and Ken. dig in reference to the delivery of this certificate of indebtedness. Had I been sitting as a juror, quite likely I might have come to the conclusion that the arrangement between Talty and Kendig was such as the testimony on the part of the defendant tended strongly to prove; but this was an action at law, and the facts in the case were to be found by the jury.