103 Ga. 508 | Ga. | 1898
The plaintiff in error claims that the trial judge erred in striking his plea as amended. He maintained, in his argument here, that he had a right, under the law and the facts of the case, to prove by parol his real intention in placing his name upon the back of the notes, as understood between him and the payee of the same. Counsel for defendant in error contended that, under the facts of the case, the plaintiff in error was a surety or an accommodation indorser whose indorsement was neither essential to nor proper in the due transmission of title in the course of negotiation, not entitled to notice as an indorser; and that he could not introduce parol evidence as to his intention or the understanding between him. and the other parties to the note. See Sibley v. American Exchange Bank, 97 Ga. 126 (4). Defendant in error further contended that section 5209 of the Civil Code, which provides that “Blank indorsements of negotiable paper may always be explained between the parties themselves, or those taking with notice of dishonor or of the actual facts of such indorsements,” applies only to blank indorsements in the technical sense, and not to an irregular or anomalous indorsement. We think such a construction of this code section too narrow. The section seems to us to apply to all blank indorsements, as well to those which are irregular and unnecessary to the negotiation of the paper as to those which are technical and essential to the transfer of title. This case is, therefore, probably controlled by the code; but even if this be not so, one who writes his name upon the back of a note, when he is neither an original party nor an indorsee, may
The case of Seymour v. Mickey, 15 Ohio St. 515, is almost exactly like the one under consideration. In that case Mickey irregularly indorsed a note before it was delivered to the payee. When he was sued upon it, he pleaded and proved that when he indorsed the note it was his intention, understood by the other parties to the instrument, that he should assume only the obligations of a regular and technical indorser and should have all the rights to which such indorser is entitled. The Supreme Court of Ohio held that he had a right to set up this agreement and to introduce parol evidence in support of it; and that if he proved it, he was entitled to notice of protest and non-payment as is an indorser. The same principle is found controlling the decisions of the United States Supreme Court on this subject, as will appear from an examination of the cases of Rey v. Simpson, 22 How. 341; Good v. Martin, 95 U. S. 95, and citations. Among the many State court decisions on this subject, see Kingsland v. Koeppe, 137 Ill. 344; Eberhart v. Page, 89 Ill. 550; Fullerton v. Hill, 48 Kas. 558; Sturtevant v. Randall, 53 Me. 155; Irish v. Cutter, 31 Me. 536; Ives v. Bosley, 35 Md. 262, s. c. 6 Am. Rep. 411; Cook v. Brown, 62 Mich. 479, and cases cited, Cahn v. Dutton, 60 Mo. 297; Lewis v. Harvey, 18 Mo. 74, s. c. 59 Am. Dec. 286; Salisbury v. Bank, 37 Neb. 872, s. c. 40 Am. St. Rep. 527; Bright v. Carpenter, 9 Ohio, 139, s. c. 34 Am. Dec. 432; Champion v. Griffith, 13 Ohio, 228; Robinson v. Abell, 17 Ohio, 42; Bank v. Jefferson, 92 Tenn.
We think the court below erred in striking the defendant’s-plea, as it stood after having been amended; and the judgment is accordingly Reversed.
