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WELCH V. LINDO, 11 U. S. 159 (1812)
U.S. Supreme Court
Welch v. Lindo, 11 U.S. 7 Cranch 159 159 (1812)
Welch v. Lindo
11 U.S. (7 Cranch) 159
The mere possession of a promissory note by an endorsee who had endorsed it to another while the assignment remained is not sufficient evidence of his right of action against his endorser, without a reassignment or receipt from the last endorsee.
An endorsement "without recourse" is not evidence of money had and received by the endorser to the use of the endorsee.
Welch brought an action of assumpsit against Lindo upon his endorsement of a promissory note. The declaration contained two counts. The 1st count stated that one John Kercheval, on 25 August, 1796, made and delivered a promissory note to Lindo, payable to his order on demand, for $246 for value received. That Lindo, on 24 January, 1800, endorsed it to Welch (the plaintiff) in these words, viz., "Pay the within to James Welch, or order, without any recourse whatever on A. Lindo." That on 30 April, 1800, Welch assigned the note to a certain William Hodgsett by writing on the back thereof the following words, viz., "I assign the within to William Hodgsett," and signed his name thereto, and delivered it to Hodgsett. That Kercheval failed to pay the money to Hodgsett on demand, whereupon, Hodgsett, as assignee of the note, brought suit against Kercheval, the maker thereof, in the circuit court of Woodford County in the State of Kentucky, in which suit Kercheval pleaded that he had paid the debt to Lindo, upon which plea issue was joined and the jury found a general verdict thereupon for the defendant Kercheval, upon which the court rendered a judgment which still remains in full force, by reason of which premises the plaintiff, Welch, became liable to pay to Hodgsett the $246, with interest, from the time the suit was brought, viz., 11 June, 1803, until 2 November, 1804, the time when he paid the same to Hodgsett, and the costs of that suit, amounting to $11.72, and did pay the same, of all which premises the defendant had notice, and by reason whereof he became liable to pay the said 2$46 dollars, with interest on the same, and the said $11.72, being the costs as aforesaid, and being so liable, the defendant, in consideration thereof, afterwards, &c., undertook, &c., to pay the same sum to the plaintiff, &c.
The 2d Count was for money had and received to the plaintiff use.
Upon the issue of nonassumpsit there was a verdict in the court below for the plaintiff on the first count and for the defendant on the second count, but the judgment on the first count was arrested and judgment was entered for the defendant.
Upon the trial, the plaintiff took a bill of exceptions which stated that he offered in evidence, a duly authenticated copy of the record of the Circuit Court of Woodford County in the suit of Hodgsett against Kercheval, which was inserted in the bill of exceptions, and produced the original promissory note, with its endorsements, and proved the handwriting of the defendant, Lindo, to his endorsement, and offered no other evidence, whereupon the defendant's counsel prayed the court to instruct the jury that the evidence so offered and produced is not of itself competent to enable the plaintiff to retain his action, and the court decided that it was not competent to enable the plaintiff to recover upon the second count, but the judges were divided in opinion whether the same was competent to support the first count, and therefore refused to give the instruction as prayed. To the opinion that the evidence was not competent to support the action upon the count for money had and received the plaintiff excepted.
The motion in arrest of judgment, was grounded upon the general insufficiency of the first count.
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