Benton v. Willard

17 N.H. 593 | Superior Court of New Hampshire | 1845

Parker, C. J.

The note in this case was made in Connecticut, and if necessary the construction of the contract must be determined by the laws of that State. It appears to have been held there that a blank. indorsement of a negotiable note, by a third pei’son, is only prima facie evidence of the contract which it imports; and that it is competent, as between the parties to the indorsement, to prove by parol evidence the agreement which was in fact made at the time of the indorsement. 11 Conn. 213, Pierce v. Cailin. Such evidence is not exceptionable, it is said, either as contravening the legal import of the indorsement, or controling a writing, or as being in opposition to the statute of frauds and perjuries. Ib.

This is somewhat in conflict with the opinion expressed in Hodgkins v. Bond, 1 N. H. Rep. 284; and it may be that some portions of that opinion are not in accordance with cases decided since that time, and with the rules of law as now generally understood on the subject of blank indorsements by persons not parties to the note.

However that may be, the point decided in that case, and which is that the indorsement was not a contract in writing, within the statute of frauds, does not arise in this case. Here, the person who placed his name upon the back of the note is not a defendant, resisting an alleged liability to pay, but brings a suit to recover as indorsee against the payee as indorser, who appears in fact to have indorsed the note at a time subsequent to that when the plaintiff put his name upon it.

It is clear that the time when the plaintiff indorsed his name on the note, and the time when it came into possession, may be shown by parol. It may further be shown that the plaintiff’s name was on the note before that of the defendant, and while it was in the hands of the defendant. If the plaintiff had then paid the money upon it, and obtained the possession of it, he could not have maintained a suit upon it against the defendant, to whom he had paid the money, for the indorsement of the latter would have had no existence.

It appears that the note was returned to Hayden, the plaintiff’s name procured to it, and the note then re-delivered to the defendant. It is the same, then, as if the plaintiff’s name had been put upon it before delivery, and he was liable as an original promisor. Martin v. Boyd, 11 N. H. Rep. 385: Baker v. Briggs, 8 Pick. 122; Moies v. Bird, 11 Mass. 436. His rights are not changed by the fact that the defendant has negotiated the note, and placed his own name upon it as indorser.

This shows that the plaintiff' has no cause of action.

Judgment on the verdict.