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all territory subject to the jurisdiction intoxicating liquors it might enact a statute thereof for beverage purposes is hereby that no liquor should be deemed “intoxicatprohibited.'92

ing” which did not contain over four, or Having this amendment in view Congress

ing this amendment in view Congress | six, or ten, or even more (where is the enacted and passed over the President's

limit?) per cent of alcohol.. veto a long and drastic statute on the sub

If it could thus raise the per cent of alject of "intoxicating liquors” wherein it

cohol, then in the estimation of the prohiundertook to define that phrase, as follows:

bition element, at least, of our people the "The word 'liquors' or the phrase 'intox United States would no longer be "dry” but icating liquors' shall be construed to in

"wet"; and such would be the opinion of clude alcohol, brandy, whisky, rum, gin,

ninety-nine hundredths of its people. beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, Thus the amendment would be practically or fermented liquor, liquids, and com

| nullified. Such an interpretation of the pounds, whether medicated, proprietary, patented, or not, and by whatever name

power of Congress leaves open the door to called, containing one-half of one per cent a practical return to the sale of liquor, in or more of alcohol by volume which are fact intoxicating. fit for use for beverage purposes.”23

There is no doubt about the desirability In both the House of Representatives,

| of a fixed and inelastic determination of where this statute had its origin, and in the

what is an “intoxicating liquor”; but that Senate, are many very excellent lawyers

determination should have been made by and not a few well versed in constitutional

the constitutional amendment itself. There law; and yet, in view of the almost uni

will be, as there' now is, different opinions versal construction of our constitution by

concerning what is and what is not an the Courts, as reflected in the cases above

"intoxicating liquor.” A man with high cited, the conclusion is almost forced upon

prohibition ideas or sentiments will conthe writer that they overlooked or did not

sider a liquor with an extremely small perfully appreciate what they were doing when

centage of alcohol in it to be an "intoxicatthey adopted that part of the statute de

ing liquor”; while à man with “liberal” fining “Intoxicating Liquors.”

ideas or notions will just as honestly conThe definition of that term is certainly sider a liquor with a very much higher one for the Courts. If the Congress may percentage not intoxicating. In the trial of say that liquors containing one-half of one cases witnesses will honestly clash over the per cent of alcohol shall be considered an question whether a particular liquor is or is "intoxicating liquor," then at some session | not intoxicating. The Courts cannot set of that body in the future when the then up for themselves a standard of percentmembers of that body entertain extreme ages. In the last analysis an alcoholic ideas on prohibition it may enact a statute liquor that has any effect whatever, though declaring that one-tenth (or even less) of unknown to him, upon an individual is in-. one per cent of alcohol in liquor shall be toxicating; but was it the intention in the deemed an “intoxicating liquor.” On the adoption of the constitutional amendment other hand, if a majority of Congress en to cover or prohibit the sale of such a tertained "liberal” ideas on the subject of liquor? Coffee and tea are stimulants. Yet

is an alcoholic liquor that is no more a stimwealth v. Ramsdell, 130 Mass. 68; Howell v. ! ulant than these two liquors to be held to State, 71 Ga. 224; 51 Am. Rep. 259; King v. be an “intoxicating liquor?” State, 58 Miss. 737; 38 Am. Rep. 344; Carl v. State, 87 Ala. 17; 6 So. 118; 4 L. R. A, 380; State v. Parker, 80 N. C. 439.

If the question is to be left to a jury, (22) U. S. Comp. Stat., 1919 Supp., p. 2678. then a jury in one state, owing to the pro

(23) U. S. Stat. 1919, p. 307, Sec. 1. Passed Oct. 28, 1919.

| hibition sentiment, will hold a particular liquor to be an “intoxicating liquor"; while | lect the note, or any part thereof, we jointly

and severally agree to pay ten per cent upon in another state where prohibition senti

the amount due at the time suit is brought, and ment does not exist, or runs low, another in case such suit is prosecuted to judgment, jury may find or hold that the same liquor

said attorney's fees equal to ten per cent of

the amount then due, shall be included in said is not intoxicating.

judgment, and such judgment shall bear inter

est at the rate of ten per cent per annum. Probably no greater difficulty will be ex

"All parties to this note, including guaranperienced determining what is an intoxicat tors, sureties and indorsers, hereby severally ing liquor under this constitutional amend

waive presentment, protest, notice of non-pay.

ment, and any release or discharge arising ment than has been experienced in many from any extension of time of payment or states where that term has been used in other cause. their statutes or the constitutions; but it is

“[Seal] Teller Packing Company, "Henry Teller.

By Henry Teller, Pres. quite clear, if defined at all, that the Courts

"H. W. Starrett. W. T. Hall." must define it, and also that Congress can

Of the parties to the note, Hall and Starrett not set up a standard by which to deter

alone were served with process. Hall de mine what is an "intoxicating liquor."

faulted. Starrett answered, putting in issue W.W. THORNTON. by denials the traversable allegations of the Indianapolis, Ind.

complaint, and pleading affirmatively the following:

"Further answering said complaint, and as a first affirmative defense thereto, this defend


“That at the time of the execution of the

said note, described in paragraph 3 of said BANK OF CALIFORNIA v. STARRETT.

complaint, this defendant signed the same as

an indorser, without consideration, upon the Supreme Court of Washington, March 17, 1920. understanding that the plaintiff would collect

the amount thereof, with interest, from the de

fendant Teller Packing Company, a corpora188 Pac. 410.

tion, as and when said corporation, which was

then engaged in the salmon packing business, Despite Negotiable Instruments Act (Rem. should receive money from the sale of its pack, Code 1915, § 3408), providing that, where signa "VI. That the said note is a demand note, ture is so placed on the instrument that it is and at diverse and different times since the not clear in what capacity the person intended making thereof, the said Teller Packing Com. to sign, he is deemed an indorser, signature by pany has had on general deposit in an open defendant of a company's note on the usual account with the said plaintiff, from the sale blank form by writing his name on the left side

of its pack, large sums in excess of the of the bottom of the body of the note, instead

amount then or at any time due upon the said of on the right, gave rise to no presumption

note, and that this defendant on several occadefendant was indorser, instead of maker.

sions notified the plaintiff that the said de

posit was on hand, and requested it to make FULLERTON, J. This is an action upon a

demand upon the said Teller Packing Con.

pany, which was primarily liable thereupon for promissory note, of which the following is a

payment of the said note, and to apply so much copy:

of said deposit as was necessary to the pay. "$4,000. Seattle, Washington, Mar. 15, 1917.

ment thereof. "On demand, after date, we jointly and sey.

"VII. That this defendant further informed erally as principals promise to pay to the order

the said plaintiff that said Teller Packing Com. of the Bank of California, National Association,

pany was in a precarious financial condition, four thousand dollars, for value received, with

and that defendant might be injured, but that. interest from date at the rate of 6 per cent per

notwithstanding the defendant's request, the annum payable monthly until paid. Principal

said plaintiff refused and neglected to make and interest payable in U. S. gold coin, at the

application of said deposit towards the par Bank of California, National Association, in

ment of said note or any part thereof, or to do this city.

anything proper to protect this defendant in

the premises. "In case default is made in the payment of

"IX. That since the sad request was made this note, and the same is placed in the hands

| by this defendant, the said Teller Packing of an attorney for collection, we jointly and

Company has been adjudged bankrupt." severally agree to pay five per cent of the amount then due as attorney's fees, if paid

The first question presented by the record without suit; but if suit be commenced to col-lis: In what capacity did the appellant sign

the instrument; that is to say, is he a maker merchant. There can therefore be no presumpor an indorser? It is the appellant's conten | tion that persons so placing their names signed tion that he signed as an indorser. This is

as witnesses, and hence nothing upon which founded upon section 17, subd. 6, of the Nego

the rule of the statute can seize to charge them tiable Instruments Act (Rem. Code, s 3408),

as indorsers. which provides that, where a signature is so placed upon an instrument that it is not clear We have been cited to no case, and our own in what capacity the person making the same researches have discovered none, where the intended to sign, he is to be deemed an in- precise question has been presented. In the dorser. The only thing unusual in the placing case of Germania Bank v. Mariner, 129 Wis. of the signature upon this instrument is that

544, 109 N. W. 574, it was discussed somewhat; it was placed on the left side of the bottom of

but the real question there presented and dethe body of the instrument, instead of upon

termined was whether the defendant was the right, the more usual place for the signa

bound upon the note at all, not whether he tures of makers. But there can be no hard and

should be bound as a maker or as an indorser. fast rules in such cases. The exigency of mod

Our own case of Handsaker v. Pedersen, 71 ern business conditions requires that houses using commercial paper keep on hand blank

Wash. 218, 128 Pac. 230, also touches the ques. forms of such paper as they most commonly

tion. In that case certain parties to the note use. These forms must be more or less gen

claimed they were not makers, but only ineral, if they are to serve their purposes, and dorsers, and the fact that they signed the note the result of this practice is that such paper is in the lower left-hand corner was relied upon often found containing matter which is sur as a circumstance indicating their purpose. plusage when applied to the particular trans

We there said that this circumstance, “if action. Such forms must also be limited as to

worthy of consideration at all," was overcome size, and only a limited number of spaces can

by certain parol evidence introduced at the be provided for signatures. When the instrument

trial. This case, it is true, is not conclusive is a note, and there are more makers than

of the question; but it is clear that insofar there are spaces for signatures, it is not an un

as it has bearing it sustains the conclusion we common practice for some of them to sign in

here reach, namely, that a person so placing the blank space to the left of the place prepared for signatures. The original note which

his signature upon a note signs as maker is in evidence bears evidence that such was

rather than as an indorser. the case here. The names of the corporation

Since the appellant signed the note as maker, together with the name and title of

maker and not as an indorser, can he show the authenticating officer, with that of another maker, took up all of the available space pro

in defense of an action against him upon the

note the matter alleged in his affirmative anvided for the signatures, and the appellant, with the other person charged as maker, if

swer? By the terms of the Negotiable Instruthey signed upon the note at all, had to sign

ments Act an accommodation party to a note elsewhere than in the more usual place.

is primarily liable thereon. His engagement

is to pay the note according to its tenor, and The appellant argues that the place upon is so holden to the payee, even if, at the time which he placed his name on the note is the of taking it, the payee knew he was but an acplace usually reserved for witnesses to the commodation party. Rem. Code, $$ 3420, 3551, signatures of the persons bound by the instru- 3582. While the rule is not uniform, even in ment, and that for this reason it is not clear those states which have adopted the Negotias to the capacity in which he signed. In a | able Instruments Act, it is generally held that case where the law required the instrument to a contemporaneous parol agreement limiting be authenticated by witnesses, undoubtedly the liability of such a maker, or fixing a colthis argument would have force whether the lateral source of payment, is not available as capacity in which they actually signed was in a defense. Such was our holding in Van Tasdicated or not; but we think it has little sel v. McGrail, 93 Wash. 380, 160 Pac. 1053, weight where the instrument is a promissory where a number of our cases to the same effect note. The law of this state has never required will be found collected. See, also, Bradley Enthe signatures of a promissory note to be au gineering Co. v. Heyburn, 56 Wash. 628, 106 thenticated by witnesses, and we are not | Pac. 170, 134 Am. St. Rep. 1127. To permit the aware that such was ever the rule of the law I agreement pleaded to be shown would there

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fore be a violation of the parol evidence rule And our view of the Negotiable Instruments as we have heretofore announced it.

Act in the section quoted from supra is to show The judgment is affirmed.

that, if according to the tenor of the instrument

any ambiguity arises, it may be explained and HOLCOMB, C. J., and MOUNT, MACKIN

it has said, in effect, that such may arise from TOSH and BRIDGES, JJ., concur.

an apparent mislocation of a signature. If such

may be explained so far as a bona fide holder · NOTE-Signature on Unusual Place on Face of for value is concerned, how much more is this Note.—The Negotiable Instrument Law provides true, when it becomes important between origthat “where a signature is so placed on an instru inal parties, so far as the parol evidence is inment that it is not clear in what capacity the volved. person making the same intended to sign, he is to be deemed an indorser." The Germania Nat. Bank v. Marriner, 129 Wis. 544, 109 V. W. 574, cited by the instant case, says: “This provision by its very terms, applies only to a case of doubt

ITEMS OF PROFESSIONAL arising out of location of the signature upon the instrument. Names are sometimes placed at the

INTEREST. side, on the end or across the face of the instrument, and thus a doubt arises as to whether the signer intended to be bound as a maker, or an | PROGRAM OF THE MEETING OF THE BAR indorser, or perhaps as a guarantor, and to solve

ASSOCIATION OF ARKANSAS. these doubts the section in question was evidently framed." Then the Court goes on to argue that in the case before it the signature was

Editor, Central Law Journal: at the place where a maker's signature should be We are now in a position to announce the and the section does not apply.

program for the Annual Meeting of the ArBut in Moore v. Cary, 138 Tenn. 332, 197 S. W. 1093, L. R. A. 1918D, 963, the face of the note

kansas Bar Association at Hot Springs, June showed a note payable to the order of Moore

2-3, 1920. Hon. A. Mitchell Palmer, Attorney. and signed at the foot by Moore and Cary. General, expects to be present and has tentaThe Court held that Moore was to be deemed an

tively accepted our invitation to deliver an adindorser, because that was the only way he could be bound, and when the bank accepted the paper

dress. Hon. Roscoe Pound, Dean of Harvard it took as an obligation by Carry as maker and

Law School, will deliver an address on "A Moore as indorser.

Ministry of Justice." We will have a timely In Ex parte Yates (1857), 7 De G. & J. 191.

discussion on "Road Improvement in Arkan. Bruce, L. J., after saying that a party signed as indorser, continued: “In reply to this it had

sas." George Vaughan, Little Rock, will read been urged that the signature was upon the face a paper upon this subject, under the sub-title, of the note and not upon the back of it. * * * "Practical Workings,” and W. B. Smith, Little The signature, although it was written upon the

Rock, on “Suggestions." This whole subject face of the note, was intended to have the force and effect of an indorsement, and it was as ef

will be open to general discussion. fectual as an indorsement as if it had been writ The following will read papers: W. F. Coleten upon the back."

man, of Pine Bluff, "Local Assessments and In Cason v. Wallace (1868), 4 Bush (Ky.) 388, the Court spoke of an "inadvertent misloca

Personal Property;" J. H. Crawford, of Arkation” of a name, rendering the signer an in delphia, "Special Legislation in Arkansas," and dorser.

Judge Scott Wood, of Hot Springs, subject not In Gibson v. Powell (1841), 6 Hon. (Miss.)

announced. 60, payee's name was written under maker's signature, a patently unusual place. Payee was held

We will have a banquet or dinner on the as an indorser.

first evening with a few short talks, followed Franklin v. Twogood (1865), 18 Iowa 515,

by a reception and dance. This will enable speaks of two paragraphs on Notes and Bills,

| members to leave on the 5:30 train on the af. p. 17, which say: "An indorsement is usually, as the word implies, written on the back of the in ternoon of the second day of the meeting. strument. It always should be written there, and

Roscoe R. LYNN, although there is authority for saying that it

Secretary. may be written on the face, we are quite sure that a circumstance so unusual would be regard

Little Rock, Ark. ed with suspicion, and would require explanation."

But in Com. v. Butterick (1868), 100 Mass. 12. PROGRAM OF THE MEETING OF THE 97 Am. Dec, 65, the Court said "indorsed” means

GEORGIA BAR ASSOCIATION. merely "written upon."

In Ryan v. First Nat. Bank (1894). 148 Ill. 349, 34 N. E. 1120, it was said it may “always be

The thirty-seventh annual meeting of the shown that a signature on the face of an instru- | Georgia Bar Association will be held at Hotel ment was placed there not as (of) a maker, but Tybee, Tybee Island, Ga., May 27, 28 and 29, for the purpose of binding the party as indorser

1920. only."

The President's address will be delivered by law dictionaries define that word, supported by Mr. Luther Z. Rosser, of Atlanta. Prof. Ros. citations from authorities going back to the coe Pound, Dean of the Harvard Law School, earliest days of the Union. will deliver the annual address.

It is common knowledge that the committees Other addresses will be delivered by Mr.

who framed the Eighteenth Amendment, as Roland Ellis, of Macon; Mr. Eugene Black, of

well as the Congress itself, are composed Atlanta, and Mr. John R. L. Smith, of Macon.

largely of lawyers, many of them of very great Judge Arthur G. Powell, of Atlanta, will read |

experience, and of national reputation as such. a paper entitled, “Practice in Appellate

It is to be presumed, therefore, that ConCourts."

gress used the word "concurrent" in its orIn addition to the reports from the usual

dinary legal sense, as defined by the courts committees, there will be a special report of

ever since the Union existed. As far back as the Permanent Commission on the Revision

1831, the time of 2 Stew, and Port., Alabama of the Judicial System and Procedure, by Judge

Supreme Court Reports, Chief Justice LipAndrew Cobb, of Athens, Chairman. We have

scomb defined the meaning of the word "cona copy of this report before us and find in it

current." some very interesting suggestions. In addi

He said in that case on page 15 as follows: tion to a discussion of this report there will be a discussion of the following subjects:

"It is an admitted principle, that where two

courts have an equal and concurrent jurisdic"Selection of Judges and Terms of Office;'

tion, that the one that commences the exercise "Should the City Courts be Abolished? If so, of its jurisdiction first, has the preference, and What Should be Substituted ?"; "Should the is not to be obstructed in the legitimate exer

cise of its powers by the court that, on the subSupreme Court and the Court of Appeals be

ject matter, would be only Co-ordinate." Consolidated ?"

In other words, under the Eighteenth Amendment, whether the laws of the United States or those of a State shall have the pref

erence in the matter of the enforcement of the CORRESPONDENCE.

article, is purely a question of time, and with

in the limits of the State, the State Legislature MEANING OF WORD “CONCURRENT" IN

is superior to the Congress of the United THE EIGHTEENTH AMENDMENT. States.

Judge Rellstab says (referring to Article VI

of the Constitution): Editor Central Law Journal: The reprint of Judge Rellstab's opinion in "By reason of this provision such a thing as

a legal conflict between the laws of Congress, the case of Feigenspan v. Bodine, in your is

enacted pursuant to the powers granted or delsue of April 9, suggests, by its length of argu

egated to it, and the legislation of any of the ment in the effort to evolve a sensible legal

States, is constitutionally impossible.” construction out of the Eighteenth Amend

By that assertion he aims to nullify the secment, that the Amendment is hopelessly ob

ond section of the Eighteenth Amendment. He scure, if the plain meaning of the words used

appears to have forgotten that it is an old in it is to be departed from.

maxim of construction of statutes and instruThe word "concurrent" has no novelty in it.

ments of writing that the later clause of a It is one of the oldest words in use in Ameri

writing prevails over an earlier clause whencan jurisprudence as the result of the fact

| ever there is any want of harmony between the that, for the first time in the experience of

two. any country, there has been such a thing as

Applying that maxim to the Eighteenth two distinct jurisdictions concurrent within

Amendment, it is clear that, instead of Article the same territory. I refer to the separate

VI of the Constitution controlling the jurisdiction of the Federal Courts and the Eighteenth Amendment, the rule is directly opState Courts within the limits of the respective

posite. States, in applying in both of them the Com The Eighteenth Amendment controls Article mon Law and Commercial Law, and in the VI. Federal Courts, the State Laws.

Article VI must be so construed as to har It was not necessary for the court to resort monize with the Eighteenth Amendment, and to a dictionary for the solution of the mean not the Eighteenth Amendment be construed ing of the word "concurrent" when all of our so as to harmonize with the Article VI.

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