Binney v. Plumley

The opinion of the Court was pronounced by Baylies, J.

It is contended, that this action should have been brought in the name of the corporation of ‘New-Marhet and Kingston Wesleyan Academy,’ and not in the names of the plaintiffs. But it does not appear, that there is a corporation of that name : We know of none in this State ; and if one exists in Massachusetts, where the plaintiffs reside, the defendant should show it, by producing the act of incorporation, or by other legal evidence. This Court, without evidence, will not presume the existence of such a corporation. But admitting there is such a corporation, and the plaintiffs are trustees of it, and the note in question was executed to them, as such trustees, I conceive this action is well brought: The plaintiffs had the legal interest in the note, and should sue to collect the money.— See 1 Citty’s Pleadings, 4.

If the plaintiffs had been mere servants or agents of the corporation, and had made a contract in their behalf, then the action should be in the corporate name. — (1 Chit. PI. *502 P- and ^le authorities there referred to.) But it seems the plaintiffs did not act as mere servants or agents, who have legal interest in their contracts; but acted as trustees, and t0°k a iegal interest.

The defendant also contends, that the plaintiffs have not averred the delivery of the note to the payees. It is not necessary in a declaration on a bill of exchange, to aver, that the maker delivered it: it is sufficient to state, that he made it; for these words imply a delivery.— Churchill vs. Gardner, 7 T. R. 596.

In the case at bar, the plaintiffs aver, that the defendant, <£ by his note, under his hand of that date, for value received, promised to pay the said Amos Binney and John Broadhead," &c. But how could the defendant effectually promise the plaintiffs by his note, without delivery % I consider, delivery is implied in the words “ by his note promised,” &c., and it was not necessary to aver it.

In Chitty on Bills, 53!, n., it is said, “ The averment of the delivery of the note to the payee is not necessary,” and refers to 7 T. R. 596, and 5 East. 476.

The defendant also insists, that “ the plaintiffs have declared upon the note, as a specialty, whereas they ought to have alleged, that the defendant, in consideration of having made, executed and delivered said note, undertook,” &c.

Whoever will examine Mr. Chitty’s critical observations upon an English declaration by the payee against the maker of a promissory note, will perceive, that there is no set of words, or phrases, necessary to be used on every occasion, in making a declaration. — Chitty on Bills, 529 to 532.

The plaintiffs, in this case, have adopted a concise form of a declaration : they do not aver that the defendant made the note; but they aver that, which includes the making; namely, that the defendant “ by his note in writing under his hand,” &c. It could not be “ his note in writing under his hand,” unless he made it. The plaintiffs have not raised a promise from the defendant’s liability to pay the money contained in the note, according to the English practice; but have declared, that the promise was made in and by the note itself, which is according to our practice.

George C. Cahoon, for the plaintiffs. Cushman, Hibbard & Fletcher, for the defendant.

On the whole, we consider the declaration sufficient, and the judgement of the County Court is affirmed.