21 Ind. 110 | Ind. | 1863
Action by Collier against Mahan upon bis indorsement of a promissory note. Issue, trial, verdict and judgment for the defendant.
The facts, so far as it is necessary to state them in order to an understanding of the merits of the case, are as follows: the defendant held a promissory note against Thomas Loftus for over 900 dollars, dated September 20,1854, due six months from date. An agreement was entered into between the defendant of the one part, and Wm. S. Mahan,David W. Standiford and William W. Standiford of the other, by which the
¥e regard it as immaterial whether the indorsement was made by the defendant at the time of the assignment to Wm. S. Mahan and the Standifords, or not until after the note came into the hands of Collier; as, upon either hypothesis, the defendant is not liable on his indorsement. If the indorsement of the note and the execution of the assignment without recourse upon the schedule mentioned were concurrent acts, they are to be construed together as constituting but one contract, and that contract, by its terms, cuts off any recourse on the defendant. Leach v. Leach, 4 Ind. 628; Thompson v. Allen, 12 Ind. 539; Woodward v. Mathews, 15 Ind. 339. This in no manner violates the rule that parol evidence can not be admitted to contradict or vary the effect o.f a written instrument. The two papers are in writing, and both constitute, in effect, but one instrument.
It is equally clear that if the indorsement was made after
The judgment below appears to have been right upon the merits, and must be affirmed.
Per Curiam. — The judgment is affirmed, with costs.