*6NO. 7872

WILKIN HALE STATE BANK VS A. S. TUCKER, ET ALS.

STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS

Judgment Affirmed.

*7OPIHIOlí.

By hls

Our two formar opinions sufficiently state the olroumstanoes of tkis oase to skow how.the following questions of law arise herein, towit;

lo. Has tke ¡endorsement on tke notes herein sued upon keen proved hy the mere fact of showing that (being payable to the order of the partnership) they were negotiated by a member of the partnership with an endorsement thereon purporting to be the signature of the firm?

So. Hoes the mere faot that the notes were taken by plaintiff directly from a member of the partnership, and the proceeds applied to his personal account, constitute suoh notice of "defect in the title of the person negotiating the sane", as to deprive plaintiff of the status of a holder in due course? Regot. Inst. Law. Seo 6*.

I.

"Sxaotly what constitutes a signing, has never been reduoed to a Judloial formula. Legibility is not a requisite, x x x completeness is not a requisite x x x; the initials x x x, the first name x x x, a fictitious sane x x x, an endorsement in figures, were held a *8sufficient signing; x x x whatever the testator, or grantor, is hhown to have intended as his signature, is a valid signing, no matter lion imperfect or unfinished, or fantaBtioal or illegible, or oven false, the separate oharaoters or symbols ho used might bo when critically judged". Plate's Batata, 148 Penn S6p 67. And it matters not that the signing was "made with lead pencil, or typewritten, or printed, or out from another instrument and attached". S6 Cyo 448, Hence whatever a person intends or represents or puts forth as his signature, I£ his signature pro hao vice. And accordingly when lioman Pruett tendered to plaintiff a note endorsed "Pruett, Bay fe Sniggs, by Moman Pruett," the proof is Juris et de Jure that this endorsement was put thera by himself.

II.

It may be admitted that plaintiffs were held to a knowledge of the law, that one partner cannot use the partnership assets for his own individual aocount without the consent of his partners; and the paper gave notice on its faoo that it was, or had bean, a partnership asset. But it did not give notioe (if suok were the fact) that Homan Pruett did not have the right, or the ooasant of ais part aera. to uso it as he did.

*9Certainly however, there was sufficient to put plaintiff on inquiry; and prior to the adoption of the Uniform Negotiable IniJnrument law, the authorities were vary conflicting as to whether or not it sufficed that the koldor lie put on inquiry in order to oonstitute notioe of "defect in the title of the person negotiating same". See Norton on Bills and Notes, 4th Edition, pages 42* to 463, and the copious notes thereon.

But under that law (Our act of 1904) it is provided in Seation 56, that in order to oonstitute notioe of a defect in the title of the person negotiating the note, the person to whom it is negotiated must have actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to had faith.

Hence, "mere suspicious oircumstanoes are not sufficient to prove, ub against the holder, notioe of a defect in the title of the person negotiating the note to him; hut in such case there must he actual proof of knowledge of the defect, or of faots sufficient to charge him with had faith in taking the instrument.''" Levy vs Moise, 8 Orleans App. 8, 9.

*10Ana. again; negotiability means simply "ourrenoy". (Hiller ts Baos, 1 Burrows 468; and tbs notes thereon in Smith's Leading Cases, Vol 1. p. 80S et seg.) And as to money, meaning bank notes, whioh we oall ourrenoy, bad faith alone will defeat the right of the taker. Here ground of auapioion, or defeot of title, or knowledge of circumstances whioh would create suspioion in the mind of a prudent man, or gross negligence on the part of the taker, will not defeat his title. Bad faith alone will defeat his title.

first Bat. Bank vs Gibert A Clay, 1E3 La 846. So the same effect, see Braman, Negotiable Instrument Law, p, 88, 62, and authorities oited.

We are therefore of opinion that plaintiff was not required, when the note herein sued upon was offered for diaoount by Homan Pruett of the firm of Pruett, Bay A Sttlggs, to inquire of said Pruett whether he had the right, or the consent of his partners, to use the note for his own individual aooount; nor to pursue 'Hie inquiry further If said Pruett had answered that he had suoh right-on aoueenV Aadvitb failure to do so, does not aonviot iti If ."bad faith? -'in taking .vtjMr.mi*,,'

The judgment appealed from in therefore affirmed.

*2opimos,

By his

This is a suit en three promissory n*tes all drawn ty defendants to the order of Pruiett, Day k Sniggs, and all dated ^^^^T^Pebruary 4th, 1917; each for the aura of #600, and payable /JbJrr /Jyi/ s r-' ' ' respeotiroly August 24th 1917, September 24th 1917 and October 24th 1917.

Plaintiff same bona fide into possession thereof on March 12th 1917, by receiving then from I/fomaa Pruiett, a member of the law firm of Pruiett, Day k Sniggs, aforesaid; said notes having then been pledged by the said Monan Pruiett as collateral for a personal loan to himself in excess of thair amount and still unpaid.

The defense, stript of details and circumstances, is substantially this; That by the transaction aforesaid no legal title to said notes passed to the plaintiff, but on the contrary the legal title to said notes is still vested in the fiom of Pruiett, Day k Sniggs; and accordingly the said notes have been extinguished by certain payments made to said firm between Hay 26th 1917 and June 6th 1917, to wit, six payments aggregating 1535.

I.

As plaintiff came bona fide into possession of the notes *3long before their maturity, It ia perfectly wloar, If at that tine it acquired legal titl# thsreto, that a* subsequent payments nado to Pruiett, Day & Salega could possibly disoha^e the maters tharoef to the prejudice of plaintiff’s right» On the other hand, if plaintiff acquired no legal titli te said notes by the transaction aforesaid, and the legal title thereto is still rested in Pruiett, Day is Sniggs, the plaintiff cannot recorer upon tha notos at all whether paid or unpaid.

So that the question of payments made, or not made, to Pruiett, Day tc Sniggs after March 12th 1917, is wholly immaterial and irrelerant ia any controversy arising between this plaintiff and theso defendants; and the solo and only inquiry permissible between them is whether er not the legal title to said notes passed out of Pruiett, Day t Sniggs and ever to plaintiff by tha aforesaid pledge of March 12th 1917

II.

Therefore/ whan we had this case before us, we thought that there was in the record oridence sufficient and competí* to warrant the conclusion reached by Judge and Jury in the court below, towit, that Uemaa Pruiett had the consent and authority of his partners to pledge these notes for his own personal account; and hence that plaintiff had acquired the *4legal title thereto hy the pledge of Haroh 12th 1917. And we so held.

But when the ease reached, the Suprema Court, that court thought the evidence on which we based our judgment, oould not he considered hy us. Wherefore they set aside our judgment and remanded che case to us.

All this considered, it is now our conclusion that without that evidence, plaintiff has not clearly established the right of liernan Pruiett to hso these notes for hi3 otra personal account.

But a reading of our former opinion herein will show that there is evidence, readily available, tending to show that he had such right; and hence we think that in the interest of justiee, the case should he remanded to the court of first instance in order to permit the introduction thereof. Por, under C. P. 906 an appellate court may remand a case with instructions to the court aqua to take further testimony on a particular point as to which the evidence is insufficient or not clear. Alford vs I. C. R. R. Co, 9 Orleans App, 110; Marti* vs Pachón, 188 La 829c

She judgment appealed from is therefore reversed and set aside; and it is now ordered ohat this case he remanded to the Court below for a new trial, with instructions to *5saaeive evidence 'Iran either- aide tending to ahew ax -deny tha right of-Henan Praiatt, an Marsh 12th 1*17, to pledge tha notes karats one/ upen far hia own personal account; asi especially ta a Salt is iridenee, if offered., the testineny .heretofore taken hy comniesion tut net offered at the firat trial; subject howoTor to all legal objections as to iititiit xeleTancy and competency which night hare been nada tharete at the first trial; and far such other proceedings in eoeerdaaee with the abara opinion as nay be warranted by law» She coats of this appeal to be borne by plaintiff and all ether oasts ta await the final result»

Haw Orleans la,