18 Kan. 216 | Kan. | 1877
The opinion of the court was delivered by
This was an action on a certain promissory note, which reads as follows:
“$75.00. Topeka, Kansas, January 11th, 1874.
March 1st after date, for value received, I promise to pay to the order of N. A. Johnson seventy-five dollars at the Topeka National Bank, Topeka, Kansas, with twelve per cent, interest after maturity, and cost of collecting, including reasonable attorney-fees if suit be instituted on this note.
“F. G. Nelson.”
Indorsed — “N. A. Johnson,” “Lorenzo Pauly.”
G. H. Bradford, the plaintiff in error, was also plaintiff below, and is the owner and holder of said note. It does not appear that any demand of payment of said note was made at the time the same became due, or that any proper notice of non-payment was ever given to the indorsers, and therefore the question arises, (and it is the only question in this case,) are the indorsers, N. A. Johnson and Lorenzo Pauly, liable? The court below found the facts with refer
“The note in suit in this case was payable to the order of the defendant Johnson, and was given as a renewal in part of a larger note made and executed in the same manner that this note was, the difference in amount between the notes having been paid in money at the time of making the note in suit. The Topeka National Bank acted as agent for the plaintiff, and drew the note for the purpose of having it executed. The defendant Nelson took the note, signed it himself, and then the defendant Johnson wrote his name across the back of the note, and after Johnson had so written his name the defendant Pauly wrote his name upon the back of the note. After the note had been executed, and the names of defendants Johnson and Pauly placed upon it as aforesaid, Nelson delivered the note and some money to the said Topeka National Bank, and received the above note referred to. Johnson and Pauly never had any further interest in the note than as above shown.”
This case differs from the cases of Firman v. Blood, 2 Kas. 496, and Fuller v. Scott, 8 Kas. 25, in essential particulars. In those cases the notes were indorsed by third persons, prior to any indorsement made by the payees, and without any knowledge, intention or expectation that the notes ever would be indorsed by the payees; and the obligations of the indorsers in those cases were to the payees; and the notes themselves were in those cases prima facie evidence of those facts.
The judgment of the court below was correct, and must be affirmed.