11 Mo. App. 130 | Mo. Ct. App. | 1881
delivered the opinion of the court.
This is an action upon the following promissory note : — “ $200. St. Louis, Oct. 21, 1878.
“ Eighty-four days after date I promise to pay to the order of Henry Boyer, two hundred dollars, for value received, negotiable and payable without defalcation or discount, and with interest from maturity at the rate of ten per cent per annum. D. R. Boogher.”
Indorsed on the back, “ Simon L. Boogher.” .
The defence is that Simon L. Boogher indorsed the note
The defendant asked for a declaration of law, the substance of which was, that if the court should find the evidence as thus stated to be true, the judgment should be for the defendant. This the court refused to give, and this is substantially the only question we have to consider.
It has long been the settled law of this State, that one who writes his name on the back of a note of which he is neither payee nor indorsee, becomes prima facie liable as a co-maker, and will be held to be such in the absence of extrinsic evidence that it was the contract or understanding of the pai’ties at the time he so indorsed it, that he should be liable only as indorser. Powell v. Thomas, 7 Mo. 440; Lewis v. Harvey, 18 Mo. 74; Baker v. Block, 30 Mo. 225; Kuntz v. Tempel, 48 Mo. 71; Seymour v. Farrell, 51 Mo. 95; Cohn v. Dutton, 60 Mo. 297; Semple v. Turner, 65 Mo. 696; Butler v. Gambs, 1 Mo. App. 466. This is the contract which the law implies from the act of so indorsing ; and the person so indorsing will be held to this contract, unless he shows that, at the time he so indorsed, there was a special contract or understanding that his liability should
Here there was no evidence of any contract or understanding between Simon L. Boogher and the plaintiff, that the latter was to be bound only as a technical indorser. It is true that the plaintiff consented to advance the money to D. R. Boogher on his note if he would get an indorser ; but there is nothing to show that he meant indorser in the technical legal sense of the term, or that he meant anything more than what the word ordinarily, and according to its etymology, imports, a name written on the bade of a note.
And when D. R. Boogher returned to him with the note, with Simon L. Boogher’s name written on the back of it, in the absence of any intimation to the contrary, the plaintiff clearly had the right to assume that Simon L. Boogher intended to assume the liability which the law affixed to his act. The instruction was, therefore, properly refused, and judg
The judgment is affirmed.