United States v. O'Hara, D.C., 46 F.Supp. 780.
4. A holder in due course holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against any party liable thereon, and plaintiff, by virtue of taking from a holder in due course, has like rights against the defendant herein. N.J.S.A. 7:2-57; United States v. O'Hara, D.C., 46 F.Supp. 780.
5. Counsel for both parties cite various cases from other jurisdictions indicating a division of authority as to whether or not parol evidence is admissible to explain that a note signed as is the note in suit was intended to be the sole obligation of the corporation as maker and that the individual adding his signature beneath the name of the corporation did so only as an officer of the corporation and not as an individual maker. See: 8 Am.Juris. 227, Sec. 482 et seq., and note at 113 A.L.R. 1364. However, this problem has been settled by two decisions of the New Jersey courts, one decided prior to passage of the Uniform Negotiable Instruments Act, and the other decided since that time. In the case of Kean v. Davis, 1847, 21 N.J.L. 683, at page 688, 47 Am.Dec. 182, the court cites with approval a statement from Palmer v. Stephens, 1845, 1 Denio, N.Y., 471 (incorrectly referred to as Palmer v. Stevens, 1 Davies 471), that parol evidence was properly admissible to show that a note reading, 'We promise to pay' and signed,
'W. G. S.'
was signed by defendant William G. Stephens, with intent that only the company of G. Stephens & Sons was the maker and that defendant signed only as their duly authorized clerk. The Uniform Negotiable Instruments Law was adopted by New Jersey in 1902. In Weinstein v. Bobker, 1935, 115 N.J.L. 187, 178 A. 752, a holder of a note was suing David Bobker as endorser. The trial court entered a judgment for the defendant upon his motion to strike a complaint because the plaintiff showed ownership by delivery only from a bank which was an intermediate holder of the note. Upon appeal, this judgment was reversed, and the court held that the note could be transferred by deliver only. The note in question read:
'$ 900.00 - June 14, 1929.
'Three weeks after date we promise to pay to the order of ourselves
'Nine hundred and no/100 dollars at Weequahic Trust Co.
'Value received with interest.
'B-W Holding Co. Inc. M. Weinstein, Pres. D. Bobker.'
Endorsed on reverse side:
On page 753 of 178A. the court stated: 'Respondent argues that the note was not negotiable because not indorsed by the makers-payees. The point was not raised on the motion (to strike). The names of Morris Weinstein and D. Bobker appear twice on the back of the note, and the appellant asserts that when they first signed it was their intention to sign as officers of the corporation, and not as individuals, and thereby bind the corporation. This may be shown by testimony at the trial. Reeve v. First National Bank, 54 N.J.L. 208, 23 A. 853, 16 L.R.A. 143, 33 Am.St.Rep. 675; Simanton v. Vliet, 61 N.J.L. 595, 40 A. 595.'
Accordingly, it being undisputed that neither the defendant or the payee of this note intended defendant to be a maker thereof, defendant cannot be charged as a maker of the note.
6. There being no Federal Statute of Limitations covering this type of action, there is no bar to institution of suit upon this obligation which the United States acquired six months after it was made. United States v. Summerlin, 1940, 310 U.S. 414, 60 S. Ct. 1019, 84 L. Ed. 1283.
7. Where, as here, an endorser waives presentment, demand, protest, notice of protest and non-payment, the holder's failure to take such waived action is no defense to the endorser.
8. Where, as here, a payee of a note, subsequent to the time that he has transferred such note to third parties for value, seizes from the endorser acting as an officer of the maker-corporation, goods which were the subject matter of a chattel mortgage from the corporate maker to the payee securing the note, such action is unwarranted and without legal basis and is no defense to the endorser when sued upon said note by a subsequent holder who neither knew of nor consented to such action.
9. Accordingly, judgment is being entered simultaneously herewith in favor of plaintiff and against defendant Joseph Perpignano for the sum of $ 279.94, plus interest thereon at the rate of 6 per cent per annum from May 7, 1936.
In accordance with the foregoing findings of fact and conclusions of law,
It is hereby ordered and adjudged that the plaintiff, United States of America, recover from the defendant, Joseph Perpignano, the sum of $ 279.94, plus interest thereon at the rate of 6 per cent per annum from May 7, 1936, together with plaintiff's costs to be taxed.
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