Dickinson v. Carroll

Negotiable Instruments — Gift oí Note — Bond Purchaser. Plaintiff voluntarily, and -with full knowledge that he owed nothing to' defendant, executed and delivered to him his negotiable promissory note, which the latter sold and transferred to a bona fide purchaser for value and without notice of any defense.. Plaintiff, being compelled, to pay such note, brought this action to recover from defendant the amount thus paid. Seld, that no cause of action exists.

'Appeal from District Court, Ward county; E. B. Goss, J. Action by Walter Dickinson against W. J. Carroll. Judgment for plaintiff, and defendant appeals. A voluntary payment, with free knowledge of all the facts, cannot be recovered, and payments are voluntary except where the payer was in immediate danger of injury to property or person, even though payment is made under protest. Scott v. Ford, 45 Or. 531, 68 L.E.A. 469, 78 Pac. 742, 80 Pac. 899; Wessell v. D. S. B. Johnson Land & Mortg. Co. 3 N. D. 160, 44 Am. St. Eep. 529, 54 N. W. 922; Lamborn v. Dickinson County, 97 IT. S. 181, 24 L. ed. 926; Powell v. St. Croix County, 46 Wis. 210, 50 N. W. 1013; Gerecke v. Campbell, 24 Neb. 306, 38 N. W. 847; Cummings Harvester Co. v. Sigerson, 63 Kan. 340, 65 Pac. 639; Little v. Bowers, 134 U. S. 547, 33 L. ed. 1016, 10 Sup. Ct. Eep. 620; Union P. E. Co. v. Dodge County, 98 U. S. 541, 25 L. ed. 196; Selby v. United States, 47 Fed. 800; Gould v. McFall, 118 Pa. 455, 4 Am. St. Eep. 606, 12 Atl. 336; Pepperday v. • Citizens’ Nat. Bank, 183 Pa. 519, 39 L.R.A. 529, 63 Am. St. Pep. 769, 38 Atl. 1030; New Orleans & N. E. P. Oo. v. Louisiana Constr. •& Improv. Co. 109 La. 13, 94 Am. St. Pep. 395, 33 So. 51; United States v. Edmonston, 181 U. S. 500, 45 L. ed. 971, 21 Sup. Ct. Pep. '718 J Laidlaw v. Detroit, 110 Mich. 1, 67 N. W- 967; Erancis v. Hurd, 113 Mich. 250, 71 N.‘ W. 582; Lathrope v. McBride, 31 Neh. 289, 47 N. W. 922; Elack v. National Bank, 8 Utah, 193, 17 L.P.A. 583, :30 Pac. 746; Mayer v. Hoffman, 67 Wis. 279, 30 N. W. 355; Redmond v. New York, 125 N. Y. 632, 26 N. E. 727. Acceptance of renewal note in place of an old one pays the latter. Citizens’ Commercial & Sav. Bank v. Platt, 135 Mich. 267, 97 N. W. ■694; Stanley v. McElrath, 86 Cal. 449, 10 L.R.A. 545, 25 Pac. 16; .Ellis v. Ballou, 129 Mich. 303, 88 N. W. 898. A consideration is a benefit to the promisor or a detriment to the ^promisee. 9 Cyc. Law & Proc. pp. 308, 316, 336. Settlement knowingly of an unfounded claim is no consideration for repayment. Mcfflynn v. Scott, 4 N. D. 18, 58 N. W. 460; Rudolph v. Hewitt, 11 S. D. 646, 80 N. W. 133; Taylor v. Weeks, 129 Mich. :233, 88 N. W. 466. Eor conversion of hills and notes, measure of damages is, prima •facie, the face of the note. 26 Am. & Eng. Ene. Law, p. 845, also see mote 1 on same page; Metropolitan Elev. R„ Co. v. Kneeland, 120 N. Y. 134, 8 L.P.A. 253, 17 Am. St. Pep. 619, 24 N. E. 381. Where one is compelled to pay money by another’s act, for which Ire would not be liable but for such act, he can recover. Edmunds v. Deppen, 97 Ky. 661, 31 S. W. 468; 27 Cyc. Law & Proc. p. 840 (subd. A under III. Defenses) and cases cited in note; 27 Cyc. Law .& Proc. p. 836 (under heading D), and cases cited in note. Erom an order overruling a demurrer to the complaint, defendant .appeals. The complaint is as follows': i “(1) That on or about the 4th day of April, 1906, for. value reoeived, this plaintiff executed and delivered to the Blaisdell-Bird Company, a corporation, his certain promissory notes payable to the Blais■dell-Bird Company or order, one for $100 due November 1, 1907, and one for $180 due November 1, 1908, said notes bearing interest 'at the rate of 10 per cent per annum. That at said time and place he also «executed and delivered to Grace Cochrane his two certain promissory i..notes, payable to Grace Cochrane or order, one for $200 due November 1, 1906, and one for $100 due November 1, 1907, said notes bearing interest at the rate of 10 per cent per annum. “(2) That on or about November 26, 1906, this plaintiff paid one -d ohn W. Cochrane $200, same to apply on his indebtedness to the said 'Grace Cochrane, and the said John W. Cochrane, having possession of the said note in favor of the said Grace Cochrane for $200, returned the same to this plaintiff; and that thereupon the total indebtedness >of this plaintiff to the said Grace Cochrane was $100, and his total indebtedness to said the Blaisdell-Bird Company, $280. That there-upon this plaintiff executed and delivered to the said John W. Oochvrane his certain promissory note, dated November^26, 1906, due November-1, 1907, payable to the said John W. Cochrane or order for -’$880, and interest at the rate of 10 per cent per annum, said note reprebsenting this plaintiff’s total indebtedness to said Grace Cochrane and :said the Blaisdell-Bird Company, and said John W. Cochrane, thereupon having possession of the said notes in favor of said the BlaisdellBird Company, but which had not been transferred by said the Blais■dell-Bird Company, returned same to this plaintiff. That this plaintiff at said time believed that the said John "W. Cochrane had authority to return said notes in favor of the Blaisdell-Bird Company and take in settlement thereof the note payable to himself hereinbefore mentioned. That said John W. Cochrane, in fact, had no authority to do such act, and the same was done without the knowledge or consent of the Blaisdell-Bird Company. “(3) That subsequently the said John W. Cochrane transferred the ■«aid note for $380 to the said.Grace Cochrane, receiving no consideration therefor except that she owned an interést in 'said note to the extent of $100. That the said Grace Cochrane, being indebted to one T. ;E. Eox, as security transferred the said note for $380 to said T. E. .’Box. That some time about the fall- of 1907, this plaintiff learned, :and was informed by the Blaisdell-Bird Company, that the said John W. Cochrane had no authority to deliver the said notes in its favor .:and take in settlement thereof the note payable to himself, and that -the Blaisdell-Bird Company was the • owner of an interest in said note .iko the extent of $280 and interest, or the indebtedness thereby represeated, and that the said notes in favor of the Blaisdell-Bird Company executed by this plaintiff on April 4, 1906, were still unpaid and ai good claim against this plaintiff. “(4) That on or about February 6, 1908, this plaintiff paid to the said T. E. Eox the sum of $146, which was the total indebtedness of the said Grace Cochrane to the said T. E. Eox, and also was the total amount of the interest in said note for $380 owned by the said Grace Cochrane, and the entire balance of indebtedness from this plaintiff to said Grace Cochrane, including interest on the two original notes from date to payment. Thereupon the said T. E. Eox returned to the said Grace Cochrane the said note for $380. That subsequently the said Grace Cochrane returned said note for $380 to the said John W. Cochrane, her entire interest in the same having been paid, andl that the balance of said note for $380 was entirely without consideration. That $280 thereof, or the indebtedness represented thereby, was the property of the Blaisdell-Bird Company, and the Blaisdell-Bird Company had the sole right to release the same. “(5) That some time in the spring or middle part of the year 1908 the said John W. Cochrane transferred the said note for $380 to this defendant, said transfer taking place long after the maturity of said note and long after this plaintiff had been apprised of the facts herein-before set forth. That about the latter part of July or the first part of August, 1908, this defendant was informed of the facts herein-before set forth, and had full knowledge that he was not the owner of said note for $380 or the indebtedness represented thereby. That he could not release the same, and that he could not legally enforce a collection thereof. That with full knowledge of said facts, and without the right or authority .to release the.balance of said note for $380 or the indebtedness represented thereby, he went to this plaintiff and returned to him said note for $380, taking in settlement thereof this plaintiff’s promissory note, dated August 6, 1908, payable to this defendant or order, for $290.08 due October 1, 1908, bearing interest at rate of 12 per cent per annum. That the said note in favor of this defendant was entirely without consideration. That this defendant was. not the owner thereof or the indebtedness thereby represented, and had no right to transfer same. “(6) That subsequently this plaintiff was compelled to and did! settle with the Blaisdell-Bird Company in full his indebtedness to it, paying in full the notes in favor of the Blaisdell-Bird Company, described in paragraph 1 hereof. “(7) That, before the maturity of said note in favor of this de- ■ fendant, this defendant in the usual course of business indorsed and transferred the said note for value to the Second National Bank at Minot, a corporation, the said Second National Bank purchased the said note for value before maturity, and without any knowledge of the facts hereinbefore set forth, or any knowledge that the said note was without consideration or in any way void or defective, or any knowledge that said defendant was not the owner of said note or the indebtedness thereby represented, or any knowledge that he had no right to transfer same. That by reason of the facts hereinbefore set forth, and that the said Second National Bank was a bona fide purchaser before maturity, in the usual course of business, for value, of the said note' in favor of this defendant, this plaintiff was compelled to pay said note to said Second National Bank of Minot, and on or about the 29th day of October, 1908, did pay said note, amounting with interest to $297.80, to the said Second National Bank, paying in cash $7.80,, and the balance in his note for $290 due October 1, 1909, with interest at 12 per cent per annum, payable to the said bank or order. “(8) That by reason of the facts hereinbefore set forth this plaintiff has been damaged in the sum of $297.80, with interest thereon at the rate of 12 per cent per annum from October 29, 1909. “Wherefore this plaintiff demands judgment against this defendant for the sum of $297.80, with interest thereon at the rate of 12 per cent per annum from and since October 29, 1908, besides his costs and disbursements herein.” The sole ground of the demurrer is that the complaint fails to state; facts sufficient to constitute a cause of action. Order reversed.