135 A. 715 | Vt. | 1927
This is an action of contract predicated upon a written instrument of the tenor following: "$1,200.00. Burlington, Vt., Oct. 4, 1920. Beginning March 1st 1921, after date, we promise to pay to the order of Genive L. Burleigh, twelve hundred dollars. Payable at Burlington, Vt., as follows: One-half of the income of the dairy beginning March 1st. 1921 until said $1,200.00 are fully paid."
This instrument was signed by Albert E. Young and Josie M. Young, and when produced at the trial the following persons had written their names across the back of it in the order named: Genive L. Burleigh, Hortense M. Roberge, and Oliver Phoenix. The facts and circumstances attending the issue and subsequent history of the instrument are not very fully disclosed by the transcript, but it may fairly be inferred therefrom that the Youngs owned a dairy farm somewhere, the milk from which was sold to the Shelburne Co-operative Creamery Company; that various amounts were paid them for milk after March 1, 1921, but nothing was paid on the obligation in suit; that at some time prior to February 22, 1922, the defendant became the owner of it, and on that day bought a piece of real estate of the plaintiff, and turned in this instrument as a part payment therefor at $1,200; that at the time he so delivered it to the plaintiff, it bore his signature as above stated, but whether it was then written or at some previous time, does not appear; that soon after this, the Youngs put it out of their power to perform the contract embodied in the instrument by selling their farm and dairy and delivering possession thereof.
The parties agree that the instrument in question is a non-negotiable promissory note, and we treat it as such. Being non-negotiable, the Negotiable Instrument Act (G.L. Ch. 140), does not apply (Muender v. Muender,
The case is briefed on the theory that the defendant is anindorser of the note, and that his rights and liabilities are such as attach to that relation. But we do not think he stands as an indorser. By a long and unbroken line of decisions in this State, one who writes his name on the back of a note, not before being a party thereto, assumes, prima facie, the obligation of a maker; but the form of his undertaking is such that parol evidence may be given of the real obligation intended to be assumed. 1 Rob. Dig. 322, §§ 98, 99; Lyndon Sav. Bank v.International Co.,
By our rule, then, this defendant was a maker, prima facie, and not an indorser as in Aldis v. Johnson,
It only remains to consider whether there was any evidence before the court tending to show that the defendant's signature was intended to carry any liability other than that of maker. The only thing shown by the record that could possibly be claimed to have such tendency is the statement of the defendant to the effect that at the time he bought the plaintiff's property, he told the plaintiff that he would take it if he would accept the note, and that the plaintiff accepted it that way. There is nothing in this statement fairly tending to show that the liability of the defendant arising from his signature on the note was to be cut down from what the law made it. It is perfectly consistent with the idea that the plaintiff was to take the note just as it was, — with the defendant's signature on it. In these circumstances there was nothing to meet the prima facie case made by the plaintiff, and a verdict was properly ordered for him. As *116
the result is an affirmance of the judgment, it is immaterial that the plaintiff does not assert the ground of decision herein adopted. Simpson v. Central Vermont Ry. Co.,
The foregoing opinion was handed down at the last May Term, and an entry affirming the judgment was directed. During the term and before the case had been certified down, the defendant filed a motion for reargument which was amended so as to ask that the entry be stricken off and the case be remanded for trial on the issue of the defendant's relation to the note. The entry was thereupon stricken off, and the motion was heard at the November Term.
Upon consideration, it seems apparent that an important question in the case has never been settled in court; and it seems plain that justice requires that the defendant's application be granted. It is not the case of a partial reversal as in Gaines v. Baldwin,
For these reasons, we think this application should be granted, but costs should be allowed as on an affirmance. See Platt v.Shields Conant,
Judgment reversed pro forma with costs to the plaintiff andcause remanded. *117