No. 222. [TITLE.] xxxi. Against Bank Drawee, having Certified. The plaintiff complains, and alleges: I. That the defendant is a corporation, created by and under the laws of this State, organized pursuant to an act of the Legislature entitled "An Act to Authorize the Business of Banking," passed... ...., and the acts amending the same. II. That on the....day of........, 187., at...................., one A. B. made his check, and directed it to the defendants, and thereby required them to pay to this plaintiff, or order [or bearer], ........dollars, for value received; and delivered the same to this plaintiff [or, if payable to third party, state accordingly]. III. That on the.. day of........, 187., at.. the defendant, by its agent duly authorized thereto, in writing, accepted and certified the same to be good. IV. That thereafter the same was duly presented for payment, but no part thereof was paid. [Demand of Judgment.] 72. Note.-In California we have no banking act, nor banking system nor can paper money be issued by any bank within the State; certified checks are, however, issued by banks, as elsewhere. 73. Authority to Certify-As to authority of bank officers to accept and certify, see Willets v. Phoenix Bank, 2 Duer, 121; Farmers' Bank v. Butchers' and Drovers' Bank, 4 Id. 219; Claflin v. Farmers' and Citizens' Bank, 25 N. Y. 293; S. C., 24 How Pr. 1. 74. Raised Check Certified.-A bank by certifying a check in the usual form, simply affirms the genuineness of the signature of the drawer, and that it has funds sufficient to meet it, and engages that they will not be withdrawn to the prejudice of the holder of the check, but does not warrant the genuineness of the body of the check: Marine National Bank v. The National City Bank, 59 N. Y. 67. Where a raised check had been certified and afterwards paid, the bank certifying and paying could recover back as for money paid by mistake: Id.; and Security Bank v. National Bank, 67 N. Y. 458. 75. Certified Check. The certifying of a check as "good" transfers the sum drawn for to the holder, and imports a promise to pay to him on demand. But the drawee cannot set off a claim on the holder against the amount so transferred, and the maker of the check is not discharged: Brown v. Leckie, 43 Ill. 497; Bickford v. First National Bank of Chicago, 42 Ill. 238; Rounds v. Smith, Id. 245. A check dated January 10, 1866, was certified by the assistant cashier of defendant's bank, and was indorsed to W., December 1, 1865. March 7, 1866, the check was deposited with the plaintiff, who credited W. with the amount on their books. The drawer of the check had not funds with defendants to meet it, either when it was certified, or when it was presented: Held, that W., as he took a postdated check, had notice that the cashier was exceeding his authority in certifying it, and that plaintiffs took subject to the equities against W.: Clarke Nat. Bk. v. Bk. of Albion, 52 Barb. 592. CHAPTER III. ON PROMISSORY NOTES, AND CERTIFICATES OF DEPOSIT. No. 223. i. Maker of Accommodation Note, having Paid it. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of...... day of........, 187., at the plaintiff made his promissory note, of which the following is a copy [copy of note]. II. That the plaintiff never received any consideration therefor, but that it was an accommodation note, made and given to the defendant, at his request, and upon his promise that he would pay it at maturity. III. That as the plaintiff is informed and believes, the defendant thereafter and before its maturity negotiated it for value. IV. That the defendant failed to pay the same at maturity, and the plaintiff paid it. V. That defendant has not repaid the same. 1. [Demand of Judgment.] Accommodation Maker as Plaintiff.-An accommodation maker or indorser is a surety and may sue as such to recover payments made by him: Baker v. Martin, 3 Barb. 634; Neass v. Mercer, 15 Id. 318. For a form of complaint by accommodation maker, see Osgood v. Whittlesey, 10 Abb. Pr. 134. If the accommodation maker was sued, the allegation may state that "the plaintiff was thereupon compelled, by suit brought against him by A. B., the holder, in the Court:" Packard v. Hill, 7 Cow. 442. And may recover the costs of suit: Baker v. Martin, 3 Barb. 634. But see Holmes v. Weed, 24 Barb. 546, which limits it to costs of default. ...... 2. Coupons.--Interest coupons to railroad bonds, payable to bearer at a specified time and place, are negotiable promises for the payment of money, and are subject to the same rules as other negotiable instruments. They are transferable by delivery, although detached from the bonds, and a purchaser in good fath, before maturity, from one who has stolen them acquires a valid title: Everston v. National Bank, 66 N. Y. 14. 3. Contingent Order.—A contingent order is not negotiable: Kenny v. Hinds, 44 How. Pr. 7. 4. Consideration.-A complaint upon a promissory note need not aver that it was given for a consideration: Pinney v. King, 21 Minn. 514. Section 3104 of the Civil Code of California is as follows: "The signature of every drawer, acceptor, and indorser of a negotiable instrument is presumed to have been made for a valuable consideration, before the maturity of the instrument, and in the ordinary course of business." -- 5. Date. A negotiable instrument may be with or without date, and with or without designation of the time or place of payment: Civil Code, sec. 3091. Any date may be inserted by the maker of a negotiable instrument, whether past, present, or future, and the instrument is not invalidated by his death or incapacity at the time of the nominal date: Id. sec. 3094. 6. Filling Blanks." One who makes himself a party to an instrument intended to be negotiable, but which is left wholly or partly in blank, for the purpose of filling afterwards, is liable on the instrument to an indorser thereof in due course, in whatever manner and at whatever time it may be filled, so long as it remains negotiable in form:" Civil Code, sec. 3125. No. 224. ii. Joint Maker of a Note, having Paid it, against the Other, for Contribution. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of ..... 187., at this plaintiff and the defendant made their joint [or joint and several] promissory note in writing, of which the following is a copy [copy note]. II. That at the maturity of said note, the plaintiff was compelled to pay, and did pay the same. III. That no part thereof has been repaid to him. .... day of 187., at the defendant made his promissory note, whereby he promised to pay to the order of the plaintiff, days after date, the sum of ......... dollars, for value received [or copy the note]. II. That thereafter, and before the maturity of said note, the plaintiff indorsed it and negotiated it for value. III. That at the maturity it was presented for payment to the defendant [or allege excuse for non-presentment], but was not paid, whereof the plaintiff had due notice. IV. That on the ... day of .. .... 187., at .., the plaintiff paid to one A. B., the holder thereof, the sum of dollars, the amount due on said note. V. That no part thereof has been repaid to the plaintiff. [Demand of Judgment.] 7. Accommodation Indorsers, Co-sureties.-In an action by an indorser of a promissory note, who has paid the same, against a prior indorser, it is competent for defendant to prove by parol that all the indorsers were accommodation indorsers, and by agreement they were, as between themselves, co-sureties: Easterly v. Barber, 66 N. Y. 433. 8. Legal Owner.-Where an indorser has paid the whole of a note, and become the legal owner of it, he may sue directly on the note: Baker v. Martin, 3 Barb. 634; Wright v. Butler, 6 Wend. 290. But where he paid only a part, he must sue for the amount actually paid, as for money paid to the use of the drawer or first indorser: Wright v. Butler, Id. 284; Pownal v. Ferrand, 6 Barn. & C. 439; Dygert v. Gross, 9 Barb. 506. 9. Separate Indorsers.—But separate prior indorsers cannot be joined as defendants in such an action; Barker v. Cassidy, 16 Barb. 177. the defendant made and delivered to the plaintiff his promissory note of which the following is a copy [set out copy of note]. II. That he has not paid the same [except dollars, paid on the ..... day of .... ........ [Demand of Judgment.] 187.]. NOTE. It is always advisable in pleading under a code to set out the instrument sued upon in the body of the complaint, as thereby any mistake as to the legal effect of the instrument will be avoided, and besides it will then not be necessary to prove the execution of the instrument, unless the execution is specifically denied under oath. The following allegation, however, is good, and may be substituted for the first paragraph in the above form: I. That on the day of.........., 187., at the defendant made and delivered to the plaintiff his promissory note of that date, and thereby promised to pay to the plaintiff, or his order, in ...... days after date, the sum of .... ........ .......... dollars. 10. Certificate of Deposit.-A certificate of deposit is on the same footing as a promissory note: Welton v. Adams, 4 Cal. 37; Brummagim v. Tallant, 29 Id. 503. It changes the character from a custodian of the funds to that of a debtor: Naglee v. Palmer, 7 Cal. 543; and the brokers become liable to pay to the holder of the certificate on its presentation: McMillan v. Richards, 9 Cal. 365; see Civil Code, sec. 3035. In an action by an indorsee on a certificate of deposit, presentation and demand must be alleged in the complaint: Bellows Falls Bank v. Rutland Co. Bank, 40 Vt. 377. 11. Consideration. In a complaint on a promissory note, it is not necessary that a consideration should be specially alleged. If there is no consideration, the defendant should set up the want of it as a defense: Winters v. Rush, 34 Cal. 136. Every note imports consideration: Bank of Troy v. Top ping, 13 Wend. 557; Goshen Turnpike Co. v. Hurtin, 9 Johns. 217; Prindle v. Caruthers, 15 N. Y. 425. An oral promise to convey land, in accordance with which the land is subsequently conveyed, is a sufficient consideration for a promissory note: Kratz v. Stocke, 42 Mo. 351. A covenant to convey is a good consideration for note for purchase money, although the payee of the note who had given the bond of conveyance had not the legal title, and could not convey it when the note became payable: Holy v. Rhodes, 2 Cranch, 245; Lane's Adm'r v. Dyer, Id. 349. But paying part of a note when all is due, is no consideration for an agreement to extend the time of payment: Liening v. Gould, 13 Cal. 598. 12. Consideration, when Set Out.-Though the holder of a promis sory note which proves to be void, may in a proper case recover on the consideration for which the note was intended to be given, he cannot do so unless the pleading set out such consideration: Waymaid v. Terreyson, 4 Nev. 124. Where an agreement of sale of personal property was signed by the purchaser only, who gave his note for the price, it might be inferred from the evidence of performance on seller's part, so as to constitute a consideration for the note: Weightman v. Caldwell, 4 Wheat. 85. 13. Copy of Note.—A complaint against a maker is sufficient where it sets forth a copy of the note, and alleges that a specified sum is due thereon from defendant to plaintiff, although the note is by its terms payable to a third person, and there is no allegation of an indorsement by him: Prindle v. Caruthers, 15 N. Y. 425; Continental Bank v. Bramhall, 10 Bosw. 595; Raynor v. Hoagland, 39 N. Y. 11. 14. Date.-—It is of no consequence whether the date of a promissory note be at the beginning or end of it: Sheppard v. Graves, 14 How. U. S. 505. But as a variance would be immaterial (Bentzing v. Scott, 4 Carr. & P. 24), the plaintiff may transfer the allegation of time and place into one of date thus: That the defendant, by his promissory note, dated on 15. Date, Variance.--A variance of one month in the time of a note described, was disregarded as immaterial, the defendant not having been misled: Trowbridge v. Didier, 4 Duer, 448. Where no time of payment is named, the note is due immediately: 8 Johns. 189; 15 Wend. 308; 6 Barb. 662; Bell v. Sackett, 38 Cal. 407; and interest runs from date, and without demand. On such a note a count stating no time of payment is good: Herrick v. Bennett, 8 Johns. 374; consult note 167, P. 142. 16. Delivery.-It is not necessary to add an averment of delivery where the plaintiff is the payee. "Made" imports delivery: Churchill v. Gardner, 7 T. R. 596; Russell v. Whipple, 2 Cow. 536; Prindle v. Caruthers, 15 N. Y. 425; Keteltas v. Myers, 19 Id. 231. Indorsement likewise imports delivery; see ante, p. 181, note 72. 17. Demand.-No previous demand is necessary to maintain an action on a note payable on demand: Zeil v. Dukes, 12 Cal. 482; Story on Prom. Notes, sec. 29. The action itself is a sufficient demand, and if there were no days of grace allowed, the note would be payable immediately after delivery: Be v. Sackett, 38 Cal. 407. But an indorser after maturity is entitled to demand and notice of non-payment before he is liable to pay: Beebe v. Brooks, 12 Cal. 308. |