A bill or note is
prima facie evidence, under a count
for money had and received, against the drawer or endorser.
But the presumption that the contents of the bill or note have
been received by the party sued and for the use of the plaintiff
may be rebutted by circumstances, and recovery cannot be had in
such a case where it is proved that the money was actually received
by another party.
But when it appears by other testimony of the plaintiff that the
money for which the note wad made was paid not to the endorser, but
to the maker, the presumption arising from the mere act of
endorsing is destroyed, and the party cannot be admitted to abandon
his count on the written contract and apply it to the general money
count.
A note payable any number of days after date cannot be given in
evidence under a count describing it as one payable on demand.
This was an action of assumpsit brought by the defendants in
error, the Bank of Alexandria, against the plaintiffs in error, the
administrators of William Byrd Page, deceased. The declaration
contained two counts. The first was on a promissory note, which was
set forth as made by William Hodgson and payable on demand to the
intestate, Page, who endorsed it to the Bank of Alexandria, where
it was discounted and the money paid to Hodgson. In support of this
count, a note was given in evidence drawn by Hodgson in favor of
and endorsed by Page, payable fifty-four days after date.
The other counts were for money lent and advanced by the
plaintiffs below to the intestate, Page, and for money had and
received by him for their use. Evidence was also given to show,
that the Bank had
Page 20 U. S. 36
used due diligence in demanding payment of the maker and in
giving notice of nonpayment to the endorser, and that Page, in his
lifetime, frequently promised the Bank payment of the note after it
became due. Judgment was given for the plaintiffs below on a
demurrer to the evidence, and the cause was brought to this Court
by writ of error.
MR. JUSTICE LIVINGSTON delivered the opinion of the Court, and
after stating the case, proceeded as follows:
Whether due diligence were used by the holder of the note is
immaterial now to inquire, as this Court is of the opinion that a
note payable any number of days after date could not be applied to
a count describing it as one payable on demand.
The only remaining question is whether this note was sufficient
proof of the count for money lent and advanced and for money had
and received. There are certainly cases in which a promissory note
or an endorsement of such note may be offered in
Page 20 U. S. 37
evidence against the maker or endorser under a count of this
nature, and if unconnected with other circumstances, may be
sufficient proof in itself to charge the defendant. This proceeds
on the ground that such note warrants a fair presumption or
inference that the maker or endorser has received the contents of
such note. But the court is not satisfied that in this case the
mere production of this note was sufficient proof of Page's having
borrowed money of the Bank, or of his having received moneys for
their use. Although a note or an endorsement be
prima
facie evidence of a receipt of money from the holders, by the
maker, or endorser, yet when all the other testimony in the cause
produced by the plaintiffs themselves, shows unequivocally that the
money for which the note was made was paid not to the endorser, but
to the maker himself, and for his sole use, the presumption arising
from the mere act of endorsement is destroyed, and the party, in
such case, ought not to be permitted to abandon his count on the
written contract of the party, and apply it to the general money
counts. It is admitted or proved that this was a note made and
endorsed for the accommodation of Hodgson, and that this fact was
known to the directors of the bank, who received and discounted it
as such, and for his sole use, and that he, and not Page, received
the avails thereof. What pretense, then, is there that this money
was lent to Page, or that he received it for the use of the
Bank?
There was also proof in the cause that Page, in his lifetime,
frequently promised the bank payment of the said note after it
became due. This promise
Page 20 U. S. 38
must be regarded as applying exclusively to the note which was
offered in evidence, and was payable in fifty-four days after date,
and if that note had been declared on, its influence on the cause
would deserve serious consideration; but it cannot be used in
support of the other count, for the testimony in terms confines
this promise to payment of then be, and says not a word of his
undertaking to repay the money which the bank had loaned to him or
which he had received for their use.
The opinion of the Court then is that the bank can only recover
from the administrators of Page, if at all, on his endorsement, but
that, having set forth the note incorrectly, and there not being
sufficient evidence to support the second count, the present action
cannot be sustained. The judgment of the circuit court is
therefore
Reversed, and judgment is to be entered for the defendants
below.
