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Nego Chapter IV Notes
Nego Chapter IV Notes
Nego Chapter IV Notes
KINDS OF DEFENSES 1. Real defenses (Absolute defenses) Those which attach to the instrument itself and generally disclose an absence of one of the essential elements of a contract or where the admitted contract is void for all purposes for reasons of public policy o Available against all holders, even HDC 2. Personal Defenses (Equitable Defenses) Those wherein a true contract appears, but for some reason, such as fraud, the defendant is excused from the obligation to perform o Can be raised only against non-HDC KINDS OF CLAIMS OF OWNERSHIP (EQUITIES) 1. Legal title May recover even from HDC 2. Equitable title May not recover from HDC, only from nonHDC REAL DEFENSE AND PERSONAL DEFENSE DISTINGUISHED REAL DEFENSES PERSONAL DEFENSES NATURE Those that attach to the NI Those which are available only itself and are available against against a person not HDC or a all holders, whether or not HDC, subsequent holder who stands but only by parties entitled to in privity with him raise them STATUS OF CONTRACT Void Voidable AVAILABILITY AGAINST HDC Available against HDC Not available against HDC DEFENSES Key: PAID-WIFI-MUD-FEM Key: CUBIC: RAIN-WIFI-MICU 1. PRESCRIPTION 1. Non-delivery of COMPLETE 2. Material ALTERATION (Sec instrument (Sec 16) 124) 2. ULTRA VIRES acts of 3. ILLEGALITY If declared corporations where the void for any purpose corporation has the power 4. DURESS amounting to to issue negotiable paper forgery but the issuance was not 5. WANT of authority of agent authorized for the particular 6. NON-DELIVERY of purpose for which it was Incomplete Instrument (Sec issued 15) 3. Negotiation in BREACH of 7. FORGERY (Sec 23) 8. INSANITY Where the insane person has a guardian 9. MINORITY available only to the minor 10. ULTRA VIRES act of corporation 11. DISCHARGE in Insolvency 12. Fraud in FACTUM or Esse Contractus Fraud in execution 13. Execution of NI between public ENEMIES 14. MARRIAGE in the case of a wife NOTE: An Instrument subject to real defense cannot be enforced against the person to whom the defense is available but it can be enforced against those whom such defense is not available such as under Sec 23 faith (Sec 55) 4. INSERTION of wrong date in an instrument (Sec 13) 5. CONDITIONAL delivery of complete instrument 6. Filling up blank beyond REASONABLE time (Sec 14) 7. ABSENCE or failure of consideration whether partial or total (Sec 28) 8. ILLEGAL consideration (Sec 55) 9. Filling up blank NOT within authority (Sec 14) 10. WANT of authority agent where he has apparent authority 11. Fraud in INDUCEMENT 12. Acquisition by FORCE, duress or fear (Sec 55) 13. INTOXICATION 14. MISTAKE 15. INSANITY Where there is no notice of insanity in the part of the one contracting with the insane person 16. Negotiation under CIRCUMSTANCES that amount to fraud (Sec 55) 17. Acquisition of the instrument by UNLAWFUL means (Sec 55)
A.
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MURRAY V. THOMPSON 136 Tenn. 118, 188 S.W. 378, LRA, 1817B 1172 (1916)
Subject: CHECK Maker: Brick Co Payee: Murray Subsequent indorsements: Murrays father sold NI to Thompson FACTS: Murray received a note from a brick company in satisfaction to his claim for damages worth $1,750 because of personal injuries. It was payable on June 1, 1915 because he was still a minor. On October 16, 1914, W.A. Murray, his father, with the consent of the minor, sold the note to Thompson. He indorsed the name of his son without apprising Thompson that he himself was not the payee. The proceeds were deposited to the account of Murray. It was invested in a saloon business and was lost. There was no actual fraud on the part of Murray in the transaction with Thompson. ISSUE: What is the status of the indorsement of a NI by a minor?
SAN CARLOS MILLING CO V. BPI & CHINA BANKING CORP 59 PHIL59 (1933)
Subject: Check Drawer: San Carlos Milling Co Drawee: BPI Collecting Bank: China Bank FACTS: San Carlos Milling is organized under Hawaiian law and is authorized to engage business in the Philippines. The business in the Philippines was handled by Alfred Cooper, its agent (under GPA) with authority of substitution. The principal employee in the Manila office is Joseph Wilson who also has a GPA but without substitution. Before Cooper left in 1926, he gave a GPA to Newland Baldwin and at the same time revoked Wilsons GPA relative to dealing with BPI, a bank where plaintiff has an account. After a year, Wilson, conspiring with Alfredo Dolores, a messengerclerk in Plaintiffs Manila office, sent a cablegram to the company in Hawaii requesting a telegraphic transfer of $100K to China Banking Corp. (CBC), where plaintiff also has an account. After receipt of the money, CBC sent an exchange contract to plaintiff offering P201K (current rate). On this contract was forged the name of Baldwin. It also contained a request for a certified check from CBC upon receipt of the money. A managers check on CBC for P201K payable to plaintiff was receipted for by Dolores. W/c check was deposited to BPI by the following indorsement: For deposit only with BPI, to credit account of (plaintiff). By (Sgd.) NEWLAND BALDWIN For Agent This endorsement was spurious. BPI credited plaintiffs account for P201K and passed the cashiers check through the clearing house, where it was paid by CBC. The same day, BPI received a letter, purporting to be signed by Baldwin, directing that P200K in bills of various denominations be packed for shipment and delivery the next day. The next day, Dolores witnessed the counting and packing of the money then he gave a check, purporting to be signed by Baldwin, for P200K. He
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HELD: FIRST ISSUE: Yes. The drawee bank is bound to know the signatures of its customers; and if it pays a forged check, it must be considered as making the payment out of its own funds, and cannot ordinarily change the amount so paid to the account of the depositor whose name was forged. This rule is absolutely necessary to the circulation of drafts and checks, and is based upon the presumed negligence of the drawee in failing to meet its obligation to know the signature of its correspondent. If the paper comes to the drawee in the regular course of business, and he, having the opportunity ascertaining its character, pronounces it to be valid and pays it, it is not only a question of payment under mistake, but payment in neglect of duty which the commercial law places upon him, and the result of his negligence must rest upon him. SECOND ISSUE: No. The act of Gozon in leaving his checkbook in the car while he went out for a short while can not be considered negligence sufficient to excuse the defendant bank from its own
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FIRST NATL BANK OF PORTLAND V. US NATL BANK OF PORTLAND 100 Ore. 264, 196 Pac 547, 14 ALR 470 (1921)
Subject: 18 forged checks Drawer: Willamette Iron & Steel Works Drawee: First National Bank of Portland Payee: Rose and Shea Indorsees: various merchants to US National Bank of Portland FACTS: Rose and Shea conspired to obtain 18 blank checks bearing the lithographed signature of Ball, president of Steel
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PNB V. NATL CITY BANK OF NEW YORK & MOTOR SERVICE CO 63 PHIL 711 (1936)
Subject: Checks
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Subsequently, on January 31, 1962, upon demand from GSIS, PNB re-credited the amount since the signatures on the check were forged. Thereupon, PNB sought to refund the said amount from PCIB but the latter refused. ISSUES: 1. WON PCIB is liable to PNB by virtue of the formers guaranty on the back of the check 2. WON PNB may recover from PCIB HELD: FIRST ISSUE: No. PCIB guaranteed that all prior indorsements, not the authenticity of the signatures of the officers of GSIS because GSIS is not an indorser of the check, but is drawer. It could have been availed of by a subsequent indorsee, or HDC, subsequent to PCIB, but PNB is neither. Upon payment by PNB, as drawee, the check ceased to be a negotiable instrument and became a mere voucher or proof of payment. SECOND ISSUE: No. Assuming PCIB had been negligent, it is still undeniable that PNB had been guilty of a greater degree of negligence, since it had a previous and formal notice from GSIS that the check had been lost and a stop payment order had been made. PNB, then, is the proximate cause and must therefore bear the corresponding loss. CAB: The fact that PNB retained the check and did not return it to PCIB after it had cleared, implies that PNB considered the check good and would honor it. As a matter of fact, PNB honored the check and paid its amount to PCIB. It was only then that PCIB allowed Lim to draw said amount from his account. ACCEPTANCE AND PAYMENT Acceptance and payment within the purview of NIL are essentially two different things. Acceptance is a promise to perform an act, whereas payment is the actual performance thereof. The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer, which in case of checks, is the payment on demand, of a given sum of money. On the other hand, payment implies not only an assent to said order and recognition of the drawees obligation to pay, but also a compliance with such obligation.
immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages but the courts shall mitigate the damages to be awarded.
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FIRST NATL BANK OF PORTLAND V. NOBLE (1946) 179 Ore. 26, 168 P. (2d) 354 (1946)
Subject: check drawn as a refund of the payment made by John and Lilian
Noble for the property purchased and subsequently reconveyed to T.D. Lee through the drawer
Drawer: Kelleck, a broker Drawee: First National Bank of Portland Payee: Lilian Noble Subsequent indorsements: Noble indorsed the check in blank and
deposited it in the United States National Bank of Portland. The deposit, on the same day, was entered as credits in the Nobles savings account and checking account.
ISSUE: WON the trial court erred in discharging the US National from
liability
check, is a finality, and the bank can't recover from the payee of the check the amount so paid. The reasons for this rule are: 1. There is no privity between the payee and the bank; 2. The bank always has the means of knowing the state of the depositor's account by an examination of its books, and therefore the payment is not a mistake within the meaning of the general rule which permits the recovery of money paid under a mistake of fact; and 3. To permit the bank to repudiate the payment would destroy the certainty that must pertain to commercial transactions and give way to uncertainty, delay and annoyance. It is a rule that a person receiving stolen money innocently in due course of business, in payment of a pre-existing debt, is a holder for value as against the former owner. b. Stop Payment Order A stop payment order is one issued by the drawer of a check countermanding his first order to the drawee bank to pay the check i.e., the drawer is ordering the drawee bank not to pay the check issued by him. The drawee bank is bound to follow the stop order provided it is received prior to its certification or payment of the check RATIO: Payment was voluntary on the part of the drawee bank which, because of the stop order, was under no legal obligation to pay and its negligence is paying precludes it from reclaiming the amount from a bona fide holder EXCEPTION: Drawee bank may claim from drawer if such payment discharged a legitimate debt of the drawer If stop order comes after the bank has certified or accepted the check, the bank is under legal duty to pay the holder and will not be liable to the drawer for doing so Certification and acceptance are akin to assignment of credit i.e., funds are segregated to be given to the payee
LIBERTY TRUST CO V. HAGGERTY 92 N.J. Eq. 609, 113 Atl. 596 (1921)
FACTS: Haggerty, a swindler, had a checking account with Liberty Trust Co. He induced a bookkeeper of the bank to manipulate the bank's books to make it appear that he had credit in the bank so that the checks he drew on the bank would be honored. They were successful for about 5 months, when a bank official accidentally discovered the falsification. Haggerty and bookkeeper succeeded in obtaining overdrafts of about $53k of the bank's funds. Haggerty was arrested. He was also declared bankrupt and a trusty was appointed. His total realized assets was $9500 and the claims filed with the trustee totaled more than $150k. Mayhew was one of the claimants. He loaned Haggerty some money with 20-40% interest. Haggerty paid him with checks drawn on Liberty. The bank paid a total of $19k to Mayhew during the time the books were being magicked. Mayhew was not aware of the fact that Haggerty's account was being falsified. Liberty wants to recover the money it paid to Mayhew. ISSUE: WON Liberty can recover what it paid Mayhew HELD: No. Mayhew was a bona fide holder for value. As such, he did not have a right to exact payment from Liberty because there was no contract between them. Liberty, on the other hand, had the right to determine whether to pay him. When the bank decided to pay, it was bound to know the state of its account with Haggerty. Having exercised its option to pay or not to pay by honoring the checks, Liberty can't recover the money back from the payee. This is under the general rule that payment of a check by a bank upon which it is drawn, under the mistaken belief that the maker of the check has sufficient funds to his credit to pay the
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SNYDER V. CORN EXCHANGE NATIONAL BANK 221 Pa. 599, 70 Atl. 876 (1908)
Subject: 4 Checks Drawer: George Snyder Drawee: Corn Exchange Bank Payee: Charles Niemann or order Holder/Recipient: RM Miner Collecting Bank: Real Estate Title Insurance & Trust Company of Philadelphia FACTS: George Snyder is a broker, trading and doing business under the name of Harrison, Snyder & Son. He is a depositor at the Corn Exchange National Bank. He had in his employ a clerk named Edwin Greenfield, an attorney, who was authorized to draw checks in his name against his deposit in the said bank. Greenfield drew 4 checks payable to the order of Charles Niemann with a total amount of $ 18, 387.50. These checks were paid by the bank and charged to the account of Snyder. The checks were said to have been indorsed by Neimann, but these indorsements were forgeries and were never authorized by him or Snyder. They were said to have been indorsed in blank to R.M. Miner & Co., a co-partnership purporting to carry on a stock and grain brokerage business but is actually conducting a gambling establishment popularly known as a bucket shop. The 4 checks were deposited by R.M. Miner to Real Estate Title Insurance & Trust Company of Philadelphia. The trust company then indorsed 3 of the 4 checks to guarantee previous indorsements to certain banks in Philadelphia for collection. The 4th check was also indorsed by the trust company but without
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CLEARFIELD TRUST CO V. UNITED STATES 318 US, 363, 63 S. S. Ct. 573 (1943)
Subject: Check for $24.20 Drawer: US Treasurer Drawee: Federal Reserve Bank of Philadelphia Payee: Clair Barner Indorsers: JC Penney to Clearfield Trust FACTS: A check was drawn on the Treasurer of the US through the Federal Reserve Bank of Philadelphia to the order of Clair Barner in the amount of $24.20. It was dated at Harrisburg, Pennsylvania and was drawn for the services rendered by Barner to the Works Progress Administration. The check was placed at the mail addressed to Barner but he did not receive the check. Some unknown person obtained it and presented it to JC Penney Co. store representing that he was the payee and endorsed the check in the name of Barner and transferred it to JC Penney Co. in exchange for cash and merchandise. JC Penney Co. endorsed the check to Clearfiled Trust Co. which accepted it as an agent and endorsed it as follows: Pay to the order of Federal Reserve Bank, Prior endorsements guaranteed. Clearfield collected check from the US and paid the full amount to JC Penney. Neither Clearfield nor JC Penney +had any knowledge or suspicion of forgery. ISSUE: WON US is barred from recovery HELD: No. He who presents a check for payment warrants that he has title to it and the right to receive payment. If he has acquired the check through forged endorsement, the warranty is breached at the time the check is cashed. The drawees right to recover accrues when the payment is made. There is no other barrier to the maintenance of cause of action. The theory of the drawees responsibility where the drawers signature is forged is inapplicable here. The drawee, whether it be the US or another, is not chargeable with the knowledge of the signature of the payee.
DETROIT PISTON RING CO V. WAYNE COUNTY & HOME SAVIS BANK 252 Mich. 163, 233 N.W. 185 (1930)
Subject: Checks for payroll Drawer: Detroit Piston Ring Drawee: Wayne County & Home Savings Bank Payee: Supposed employees of Detroit Piston FACTS: Helen Culbert was a trusted payroll clerk of Detroit Piston. She prepared the biweekly payroll and the checks corresponding therewith. She would then have these signed by the officer of the Company who would sign the same without question. Unbeknown to the Company, Culbert was also preparing checks to the order of non-existing persons or former employees which she subsequently indorsed in the names of the payees and negotiate them to other banks or stores. The drawee bank would then pay the same and debit Detroit for the corresponding amount. The cancelled checks were then returned to the company on the first of each month. the bookkeeper would then compare the balance on the bank statement with Detroits own book. She would then sign a receipt containing the stipulation if no error is reported in ten days the account will be considered correct. Because of the increased cost due to the activities of Culbert, the Company employed auditors to ascertain the reason for said
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NOTE: Spoilaton, material alteration by a stranger, does not affect the NI, provided the original meaning can be ascertained
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FOUTCH V. ALEXANDRIA BANK & TRUST CO 177 Tenn. 348, 149 S.W. (2d) 74 (1941)
Subject: Check for $18 altered to $418 Drawer: W.L. Foutch Drawee: Alexandria Bank & Trust Co Payee: B.W. Foutch FACTS: W.L. Foutch purchased a cow from B.W. Foutch for $18 for which he gave a check to B.W. Foutch, payable to his order. This check was wholly written by the payee (because it was W.L.'s practice to have the checks filled out by the parties to whim the check was made). In the check, there was a space between the dollar sign and the amount in numbers and the amount in words was written midway of the line provided for it and in the lower left corner for cow and when presented it already bore $418, four hundred eighteen dollars and for cow and note. All the figures and writings in the check were in the same writing except for the signature when it was presented to the bank.The bank paid to B.W. Foutch the sum $418 called for by the check, and charged it to the account of the drawer. ISSUE: WON the the bank is liable for the overdraft (or should W.L. Foutch bear the loss)
SAVINGS BANK OF RICHMOND V. NATL BANK OF GOLDSBORO 3 F. 2d 790, 39 A.L.R. 1374 (1925)
Subject: Check for $6 altered to appear $8,470 Drawer: AC Norwood, President of National Bank of Goldsboro Drawee: First National Bank of New York Payee: Order of NL Massie Holder/Recipient: Savings Bank of Richmond
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HELD: FIRST ISSUE: No. The issuing of the note could in no sense be considered as proximate cause of the loss. Where a negotiable note was delivered in completed form, the possibility that it might be altered by the willful fraud or forgery of another was too remote to afford basis of an action either in tort or in contract. SECOND ISSUE: The note in its forged and altered state is not a contract of the maker of the instrument. Thus, a suit based on contract can neither prosper. THIRD ISSUE: Yes. But only as to the original face value of the draft. Section 3106 of the Negotiable Instruments Law of North Carolina provides: Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided except as against the party who has himself made, authorized or assented to the alteration and subsequent indorsers. But when the instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to the original tenor. NOTE: HIDC enjoys status as such only to the extent of the original amount as written by drawer or maker in a proper case. Impliedly, it seems to say that the HIDC albeit protected by the law still has some duty to conduct reasonable inquiry especially when transactions involve huge sums of money. Certainly 8,000 dollars is a huge amount in the 1920s.
CRITTEN V. CHEMICAL NATIONAL BANK 171 N.Y. 219, 63 N.E. 969, 57 L.R.A. 529 (1902)
FACTS: Plaintiff kept a large and active account with the defendant. The Plaintiffs employed a clerk named Davis. It was the duty of Davis to fill up the checks which it might be necessary for the plaintiffs to give in the course of business, top make corresponding entries in the stubs of the check book, and present the checks so prepared to Mr. Critten, one of the plaintiffs, for signature, together with the bills in payment of which they were drawn. After signing a check Critten would place it and the bill in
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WELLS FARGO BANK V. BANK OF ITALY 214 Cal. 156, 4 P. 2d 781 (1931)
Subject: A check drawn which was altered (the payees name was substituted: Drawer: McCormick Steamship Co Drawee: Wells Fargo Bank Payee: Albert Meyer & Co Collecting Bank: Bank of Italy Holder/Recipient: Popkin FACTS: Behling, an employee of steamship co., purchased clothes from a store owned by a certain Popkin, and offered the check in question as payment. (It is not known how Behling got hold of the check). The 2 then went to drawee bank to have the check cashed. After presentment, the drawee bank certified the check but suggested that Popkin, being a depositor of defendant bank,
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REPUBLIC BANK V. CA AND FIRST NATL CITY BANK G.R. NO 42725 (1991)
Subject: Check for $240 which was later altered to $9,240 Drawer: San Miguel Corp Drawee: First National City Bank (FNCB) Payee: J. Roberto Delgado Clearing Bank: Republic Bank FACTS: SMC drew a divided check worth P240 in favor of Delgado, one of its stockholders. After the check had been delivered, the check was altered by increasing the amount on its face from P240 to P9,240. This was done fraudulently and without the authority of SMC as drawer. The check was indorsed and deposited on March 14, 1996 by Delgado in his account with Republic Bank. Republic accepted the check without ascertaining its genuineness and regularity. It endorsed the check to FNCB with a stamp on the back of the check, stating: all prior and/or lack of indorsement guaranteed. March 15, 1966: FNCB, believing that the check was genuine and relying on the guaranty and endorsement of the petitioner bank, paid the amount on the face of the check.
Types of Fraud (1) Fraud in factum (real defense) The person who signs the instrument lacks knowledge of the character or essential terms of the instrument. But the defense is not available if the party had reasonable opportunity to obtain such knowledge o An essential element is that the maker or indorser must have exercise ordinary diligence and in no manner contributed negligently to the imposition
PETERS, DISSENTING: The type of fraud here involved has been referred to as fraud in esse contractus, fraud in the factum, fraud in the inception or fraud in execution, to distinguish it from fraud in the inducement which is a mere personal defense. At common law the cases were practically unanimous that fraud in the execution was a real defense. The overwhelming weight of authority is to the effect that the adoption of the NIL in no way changed the common law rule, and that both before and after the adoption of that uniform statute, fraud in the execution was and remained, a real defense. The applicable rules under the NIL is stated as: Although there are some decisions to the contrary, the weight of authority holds that if a person intending to sign an instrument of an entirely different character places his signature to a negotiable instrument not being due to laches or negligence on the part of the signor, the latter is not liable on the instrument, although it has passed into the hands of a bona fide holder for value. Sec. 57 of NIL, Sec. 3138 of the Civil Coe, provides that the holder in dues course free from any defect of title of prior parties, and free from defenses available prior parties among themselves. When a party, without negligence, signs a document by reason of fraud of another and honestly and reasonably believes it to be something else other than a negotiable instrument, the document, when executed is not merely voidable it is void. Fraud of this type is not a mere defense nor a mere defect of title such as referred to in Sec. 57. It is a factor which renders the instrument non-existent as a binding obligation.
ISSUES:
2. 3.
4.
WON plaintiff is a holder in due course. WON defendants are free from negligence. WON the defendants can plead the defense of fraud against the plaintiff
HELD: FIRST ISSUE: Yes. Defendants do not contend that the plaintiff is a holder in due course. No evidence was introduced that C.L.T. had actual knowledge of a defect in the instruments or any fact that would justify a finding that the plaintiffs acceptance of the instruments amounted to bad faith on their part. SECOND ISSUE: Yes. The trial court determined that, notwithstanding the possession of some knowledge of the English language on the part of the defendants, their neglect to call upon others present to read to them the documents, and their failure to insist on their request for time to seek independent legal advice, they are free from negligence. A reading of the record alone might well disapprove this finding, but, bearing in mind that the trial court had an opportunity to view the witnesses, note their demeanor, the Court refrained from stating as a matter of law that there is insufficient evidence to uphold it. THIRD ISSUE: No. In Wisconsin, Minnesota and Illinois, NIL or other legislation expressly makes fraud in factum a real defense. However, the Uniform Code Act does not. It is possible, then, that such conduct is fraud within Sec 55 and causes merely a defect in title, which is a personal defense. Under the old common law view fraud in Sec 55 would be limite d to fraud in inducement, which is a personal defense, while fraud in factum is a real defense, being analogous to forgery under Sec 23. To follow the Wisconsin law would mean amending the Civil Code Sec 3136.
CLT CORPORATION V. PANAC 25 Cal. (d) 547, 154 P. (2d) 710, 160 A.L.R. 1285 (1944)
Subject: 2 Promissory notes in payment of certain repairs and renovations to be performed by payee upon 2 houses owned by makers Maker: Spouses Panac, illiterate; unable to read or write in English Payee: Home Improvement Co Indorsee: CIT Corp (HDC)
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COHN V. CITY OF TAUNTON 303 Mass. 182, 21 N.E. (2d) 281 (1939)
FACTS: An action filed by Cohn et al., innocent purchasers for value without notice, to prosecute to recover the face amount of overdue coupons on certain bonds of the defendant city payable to bearer which have been stolen from the vault of the city treasurer. After the bearer bonds had been delivered to the City Tre asurer as agent in order to have them registered, the Treasurer had completed the issue of fully registered bonds of like amount, but had not destroyed or cancelled the bearer bonds nor placed any notation upon them and had kept them in his vault. Cohn and company held them, but the City Treasurer refused to pay on the ground that the amount covered by the bonds had been paid already. ISSUE: WON Cohn is HDC and thus entitled to the amount HELD: Yes. An instrument that has once been issued, returned, discharged, and stolen would seem to stand no differently in the hands of a holder in due course than an instrument that has been prepared, signed and stolen before being issued. The validity of municipal obligations is not affected, in the hands of innocent holders for value, by facts which concern merely the
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SMITH V. DOTTERWEICH 200 N.Y. 299, 93 N.E. 985, 33 L.R.A. (N.S.) 892 (1911)
Subject: Promissory note for $3,740 payable in 6 months Maker: Dotterweich Payee: Smith FACTS: Dotterweich executed and delivered to Smith (PAYEE-plaintiff) a
promissory note for $3,740 payable in 6 months. When the note became due, it was renewed by 4 notes payable 6 months from that date. The renewal notes were not paid at maturity, & Smith brought action for payment. Smith introduced evidence to show that the original note was given in payment of premiums on 2 life insurance policies to the defendant by the John Hancock Life Insurance Company through Smith, as its general agent. Dotterweich denied that the notes were given for value received and that Smith was the lawful holder & owner thereof, alleging an oral agreement under which neither the notes nor the insurance policies were to become valid & enforceable obligations unless Smith secured for Dotterweich a certain loan of money. The trial court granted Smiths motion to direct a verdict, to which Dotterweich excepted and moved to submit to the jury the question whether there was a condition that the original note & the insurance policies should be returned in case Smith did not procure a loan of $70,000 for Dotterweich within a year. The motion was denied, and Dotterweich took an exception. ISSUE: WON the oral agreement between the parties meant that the notes were never valid, in which case there was no delivery
H.
HELD: No. There was delivery but the notes became invalid because of the failure of the condition.
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PAVILIS V. FARMERS UNION LIVESTOCK COMM. 68 S.D. 96, 298 N.W. 732
FACTS: Plaintiff Pavilis filed the action to recover upon an instrument alleged to be a check transferred to plaintiff for value by one C. Hoard who was named as payee therein. Defendant Farmers Union Livestock Commission argues that: (a) plaintiff was not HIDC, and (b) the instrument signed in blank by defendant and having been stolen from his possession prior to delivery had no legal inception or existence as a check. Lower court ruled in favor of plaintiff. Defendant appealed. It was practice of defendants office manager, who was authorized to sign checks, to sign a block of instruments, printed to be used as check at the beginning of the business day and deliver the same to the bookkeeper whose regularly duty was to complete the instruments as checks and deliver the same to customers during the business day. It was also the practice of such office manager to procure the return of such signed instruments not delivered at the close of business day for the purpose of safekeeping and for the purpose of checking or auditing the same. Around February 1939, one C. Hoard was employed by defendant as a bookkeeper and clerk. Hoard was expressly authorized by defendant in the presence of such other bookkeeper to complete and deliver checks only during business hours and only for
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LINICK V. AJ NUTTING & CO 125 N.Y.S. 93, 140 App. Div 265 (1910)
FACTS: Plaintiff Linick signed his name to a blank check. Thereafter Rycoff and Silberman stole the check, filled in the name of FA Mann as payee and $147.87 as the amount thereof, and presented it to the State Bank, where plaintiff kept his account, and procured it to be certified. Thereafter they indorsed said check with the name of FA Mann and passed it to defendant A.J Nutting and Co. for value, who collected the amount from said bank. Plaintiff, having taken up said check from the bank, now sues defendant as for money had and received for the amount of the check. ISSUE: WON defendant obtained any title to the check which as against the plaintiff, was a valid obligation for $147.87. HELD: No. In the case of a commercial paper, when by voluntary act a party instructs another with such paper with a blank thereon designed to be filled up with a stipulated amount, such party is liable to a bona fide holder, of the instrument. As to the basis of (plaintiffs) liability, some say that it rest s upon an implied authority conferred by the maker upon the person to whom it was delivered to fill in the blanks, and others upon estoppel by reason of negligence. Not upon implied authority: for such doctrine grows out of principal-agent relationship, and theres no such relation between a thief and his victims. The rule that the bona fide holder of an incomplete instrument, negotiable but for some lack capable of being supplied, has implied authority to supply the omission, and to hold the maker thereon, only applies when the latter has by his own act, or the act of another, authorized, confided in or invested with apparent authority by him, put the instrument in circulation as a negotiable paper.
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1. Prima Facie Authority to complete the instrument Requisites: a. Want of a material particular in the instrument (Sec 125) b. Possession thereof by a person c. That such person had authority to fill up the blank (1) Strictly in accordance with the authority given; and (2) Within a reasonable time 2. Prima Facie Authority to Fill it up for any amount Requisites a. Signature on a blank paper b. Person signing in blank delivers it to another c. Delivery was for the purpose of converting it into NI NOTE: IF the holder of the NI, after it was filled up, is HDC, the holder may enforce the instrument as if it has been filled up
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SIMPSON V. NATIONAL BANK OF ROSEBURG 94 Ore. 147, 185 Pac. 913 (1919)
Subject: Promissory Note Maker: Mrs. M. Josephson Payee: intended to be blank Indorsee: National Bank of Roseburg Possessor: Grace Simpson FACTS: When the note was executed the name of the payee was left blank, and was still in that condition when the plaintiff received it. The plaintiff tells about writing the name of the in blank and avers that the plaintiff is entitled to the indorsement of the defendant herein upon said note and was at all times so entitled to the same ISSUE: WON plaintiff has a right against the defendant and the maker of the note HELD: (case was remanded, court merely discussed rules of the law of merchant if instrument is incomplete) When the maker of the note left a blank for the name of a payee and delivered the instrument in that condition to another person for value then that person to whom the note was delivered or any subsequent holder could insert his own name, or that of a transferee, as payee. The plaintiff could not have sued and recovered upon an incomplete instrument. Grace Simpson could, in the absence of knowledge of special instructions given by the maker, have filled the blank by writing her own name as payee. However, in this case, evidence show that the makers intention was that the name of the bank was to be filled in the blank as payee. A person upon whom authority is conferred to complete the instrument, is not referred to as the holder but as the one in
WILLIAM BARCO & SON V. FORBES 194 N.C. 204, 139 S.E. 227 (1927)
FACTS: Plaintiffs brought suit upon a note for $227.25 against defendant who issued it for the purchase of fertilizer from plaintiff. The note, dated Jan 10, 1923, was given in renewal of a former note dated July 1, 1922. Defendant contended that the fertilizer was bought for use in producing a sweet potato crop in 1922, and that the fertilizer was worthless and had no effect whatever upon the crop. This fact notwithstanding, TC ruled in favor of plaintiffs. ISSUE: WON defendant is liable HELD: Yes. One who gives a note in renewal of another note, with knowledge at the time of partial failure of the consideration for the original note, or of false representations by the payee, waives such defense and cannot set it up to defeat or to reduce the discovery on the renewal note. (Bank v Howard) The time for harvest was in July or August 1922 and the potatoes were dug at that time. It is obvious, therefore, that the defendant knew then that the fertilizer was worthless and that there was a total failure of consideration. Nevertheless, he executed the renewal note.
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