12 Wis. 639 | Wis. | 1860
By the Court,
This action is upon a promissory note, made by one George Swaney, paymble to tbe order of tbe defendant in error, and indorsed in blank by tbe plaintiff in error. It was proven on tbe trial, and tbe circuit court found as facts, tbat tbe note was executed by Swaney and indorsed by Cady, and afterwards delivered to Shepard; tbat tbe note was given for goods sold and delivered by Shepard to Swaney, upon tbe faith and credit of Cady's indorsement, which Cady then agreed to give for this purpose; tbat Cady executed tbe indorsement in pursuance of this agreement, with intent to become liable to Shepard in tbe amount of tbe note, and to give credit on tbe same; and tbat Shepard was tbe owner and bolder of tbe note. It was also admitted upon the trial tbat due demand of payment of tbe note bad been made at its maturity, and that it was duly protested for non-payment, and notice thereof properly given to Cady. Tbe evidence íd respect to tbe attending circumstances under which tbe indorsement was made, was objected to as being incompetent.
Now tbe legal inference from tbe face of tbe note mentioned in this case would be tbat Cady was second indorser. Tbe note being payable to the order of Shepard, in tbe ordinary course of business be would be tbe first indorser; and unless be indorsed the note without recourse, be could not maintain an action upon it — if tbe note afterwards came to his bands — ■ against tbe second indorser, because if be recovered, tbe second indorser would have an immediate right of action against him on his earlier indorsement. It would be, in effect,
The judgment in this case must be affirmed.