Fanny F. Richardson vs. Annis A. Lincoln; The Same vs. The Same, 5 Met. 201

Shaw, C. J. The principal question of law arising upon these exceptions is, whether Zaccheus Richardson, the payee and indorser of the note, was a competent witness. The defendant not being the payee of the note, having put his name upon it in blank, he must be considered an original promisor and surety, if he so put his name upon it simultaneously with the promisor, as an original contractor. Hunt v. Adams, 5 Mass. 358: 6 Mass. 519. Samson v. Thornton, 3 Met. 275. The object of offering the father as a witness was to prove that fact.

He had formerly brought suits in his own name, and became nonsuit, probably on account of the want of proof, upon the point mentioned. He then negotiated the notes to his daughter, who now sues as indorsee. The case places the father in a situation, in which he had a strong bias in favor of the plaintiff; but that is an objection to his credit, and not to his competency. He had no pecuniary interest in the event of the suit, and was therefore competent. Spring v. Lovett, 11 Pick. 417.

It was then contended, that there was no proof of delivery of the indorsed note by the father to the plaintiff, so as to enable her to sue as indorsee. It is no doubt true, that if the holder of a note simply makes an indorsement upon it, directing it to be paid to a third person, and retains it in his own possession or power, no interest vests in the indorsee. But a constructive delivery is sufficient; any act which puts it into the power or under the control of the indorsee.

Even in case of the sale of goods, deposited in the hands of a third person, a contract of sale, with an order to the depository to deliver them to the vendee, is a good constructive delivery. In this case, the note was in the keeping of Mr. Williams, as the attorney of the promisee, and he was then his agent. But when Richardson, the promisee, negotiated the note to his daughter, and left it in Mr. Williams’s custody for her use, he thereby consented to hold it for her, and became her agent, and brought an action upon it in her name, which she sanctioned by original order or subsequent ratification.

This is abundant proof of actual transfer and constructive delivery, and makes her indorsee and holder of the note, although she never saw it. In the case of Hedge v. Drew, 12 Pick. 141, it was held, even in case of a deed, that a delivery by the father to a third person, for the use of his daughter, and her subsequent assent to it, was a good delivery to pass real estate. It was stated in the argument for the defendant, that this note was indorsed without recourse, from which it was contended that the indorsee was to be regarded as the agent of the indorser, to collect it for his use.

This, if it was so indorsed, is not a just conclusion. Such an indorsement transfers the whole interest, and the clause, “ without recourse,” merely rebuts the indorser’s liability to the indorsee and subsequent holders. It has indeed been sometimes considered that this clause, with other circumstances, tends to show that the note was not indorsed for value, and in the usual course of business, giving the indorsee an absolute title, without set-off, or such other defence as the maker might have, if sued by the promisee.

But in the present case, if the defendant had any such set-off, or other defence, as against the promisee, it would be fully open to him, not only because the note was indorsed without recourse, but because it was indorsed after it had been long overdue. Exceptions overruled.