Opinion
March Term, 1864
W. Curtis Noyes, for the appellants.
Gilbert Dean, for the respondents.
It is fair to presume that the court granted the motion for a non-suit on the grounds presented there and here by the counsel for the defendants, and stated in the case; and I shall therefore limit myself to the discussion of the two propositions embraced in that motion.
If this case is governed by the eighth section of the first article of the title of the revised statutes which relates to "moneyed corporations" (1 Rev. Stat. 591), it is not necessary to decide whether the plaintiffs were properly non-suited. There was no previous resolution of the board of directors, authorizing the transfer of the note in question; nor were the plaintiffs purchasers of the paper for a valuable consideration without notice, within the exception to the general effect of that section. As the plaintiffs dealt directly with the Atlas Insurance Company, and not with a supposed bona fide holder of their paper, they are chargeable with knowledge of the statutory prohibition in question avoiding a transfer not sanctioned by a previous resolution of the board, and are not within the protection of that class of dealers who purchase bona fide from those presumed to have a good title to the paper which they sell.
But I think this case must rest on the charter of the company, granted in 1843, which adopts a section of the charter of the Atlantic Insurance Company, granted in 1842. (Laws of 1843, Ch. 92, § 8; Laws of 1842, Ch. 217, § 12.) These acts were passed subsequent to the revised statutes, and so far as they prescribe a rule for the transfer of paper held by the company, different from that declared by the revised statutes, they must be deemed to overrule the former law. This was distinctly held in a case in this respect precisely similar — that of Howland v. Myer (3 Comst. 290.)
Nor is this in conflict with the decision of this court in Houghton v. McAuliffe and others, in December, 1863. There was nothing in the latter case to show that there was any provision in the charter of that insurance company which conflicted with the rule laid down in the revised statutes; and the latter were therefore properly held to be applicable.
We must, therefore, examine the case with reference to the charter of the Atlas Insurance Company. That charter, in regard to notes received for premiums in advance, authorized the company to negotiate them for the purpose of paying claims, or otherwise, in the course of its business. The note in question must be regarded as a note of that character. It expressly appears that the note was given for premiums on an open policy of marine insurance, and it could not well be, therefore, a note of any other description than those mentioned in the charter. I think we must also assume that the notes for which it, with others, was substituted, in December, 1855, were negotiated for the purpose of paying claims, or otherwise, in the course of its business. The purpose of the negotiation of the notes is not very distinctly stated, but taking the presumptions of law and the fair inferences from the facts proved, we are authorized to conclude that they were negotiated in the course of its business — its lawful business. If the notes originally negotiated were thus lawfully transferred to the plaintiffs, I do not see that the surrender of those and the substitution in their place of others (including the note in suit) for the convenience and accommodation of the parties, can be unlawful. It was but an exchange of security, all of which, as well those originally taken as those subsequently substituted, were, so far as we can discover, of a character which made it proper, under the section in question, for the company to negotiate them for the purposes of its ordinary business. In regard to all those matters, as to the notes being taken for premiums in advance or to their being negotiated for a purpose authorized by the charter, inasmuch as no objection was made to them on the trial in these respects, we are authorized to assume that they came directly within the scope of the section under consideration. So regarded, their transfer was lawful, and the title of the plaintiffs thereto indisputable, within the case of Howland v. Myer (3 Comst. 290), and if the court below non-suited the plaintiffs on this ground, I think it must have been from inadvertence, in not considering the case last referred to in connection with the provisions of the present charter.
The mode of endorsement is supposed also to present an insuperable difficulty in the way of the transfer of the legal title to the paper to the plaintiffs. It is sufficiently clear that the object of the endorsement was to pass an absolute title to the plaintiffs. The secretary states that this was the usual mode of transfer, and that notes to a large amount have been thus transferred by the company. The nature of the transaction detailed in the evidence, also shows that the intention of the parties was to pass an absolute and unrestricted title to the paper. The endorsement itself, though slightly ambiguous on its face, is susceptible of that construction, and fairly indicates either that the secretary endorsed the note for or on account of the company, or what is more probable, that the plaintiffs on receiving the sum due thereon, were to credit the same to the account of the company, as between the transferee and such company.
In this case no question is made as to the intention of the transfer between the company and the plaintiff. And on the facts shown, I think the company could not be heard to dispute the plaintiffs' title. Clearly the defendants on such an endorsement, could not refuse payment to the plaintiffs, whether the name of the payee in the endorsement remained in blank, or was filled in with the names of the plaintiffs. It was, I think, a transfer of the title to them only to be defeated, on a prosecution of the note, by proof that the plaintiffs were not the real parties in interest.
The judgment should be reversed, and a new trial granted, with costs to abide the event.
All the judges concurring, judgment reversed.