47 Neb. 269 | Neb. | 1896
This was a proceeding by Fetzer, the defendant in error, in the district court for Douglas county to foreclose fifty-seven different mortgages executed by William B. Cowles and wife to Editha H. Corbett, upon certain property in North Side Addition to the city of Omaha, to secure payment of as many notes of even date therewith, payable by said Cowles to the order of the mortgagee named. It is alleged in the petition that the said Editha H. Corbett, Charles Corbett, Day & Cowles, and
Practically the only question presented by the motion for a new trial and the petition in error relates to the liability of the Corbetts as indorsers of the notes above described. On the back and near the top of each of said notes appears the following: “E. H. Corbett. Chas. Corbett. Without recourse on us. Day & Cowles. R. W. Day.” Said notes, according to the claim of the Corbetts, had been pledged to Samuel R. Johnson, bearing their indorsement in blank, as collateral security, and shortly before the consummation of the sale thereof to Fetzer the words immediately following their names, as shown above, were added in order to limit their liability thereon. The transaction which resulted in the purchase' of the notes by Fetzer was conducted on the part of the Corbetts by R. W. Day, one of the defendants named,
The remaining questions merely involve the application of the law to the facts, above stated. A case in point is President of Fitchburg Bank v. Greenwood, 84 Mass., 434. Upon the back of the note produced at the trial of that case there appeared in three successive lines the following indorsements: “Greenwood & Nichols — without recourse — Asa Perley, 2d.” Parol evidence was offered by Greenwood & Nichols tending to prove that the words “without recourse” were written hy them for the purpose of limiting their liability as indorsers and rejected in the absence of an •offer to prove notice by the plaintiff, a remote indorsee and alleged bona fide holder. In reversing the judgment of the lower court Bigelow, C. J., said: “There is no rule of law which requires a party to limit or qualify his indorsement by any writing preceding his signature. Such qualification may and often does follow the name of the party. Text-writers of approved authority recognize this mode of limiting the liability of an indorser as regular and appropriate.” The doctrine of- that case is sustained by the following authorities therein cited: Chitty, Bills (10th Am. ed.),
Reversed.