Fish v. First National Bank

| Mich. | Nov 29, 1879

Marston, J.

This action was brought by the bank to recover upon certain promissory notes made payable to tbe order of I. N. Jenness & Co. and Frances S. Fish, and indorsed by them. The indorsement of Mrs. Fish was under and made after that of I. N. Jenness & Co. The defense set up is that at the time' these notes were given and indorsed, the firm of I. N. Jenness & Co. was not in existence, because of the death of Henry Fish, one of the members thereof; that if Mrs. Fish is liable upon these notes, she is jointly liable with Isaac N Jenness, and that if he is released because there was no such firm, then she is released also. These notes were given to the bank to take up other notes upon which the firm name of I. N. Jenness & Co. appeared, that firm, having-done business with the bank previous to the date of the paper in question.

An indorsement admits all prior indorsements to have been duly made. It is said the indorser warrants the title and genuineness of the paper he transfers, and that when sued1 he cannot deny the existence, legality or validity of the contract which his indorsement put in circulation, for the purpose of defeating his own liability. Edwards on Bills and Notes, 289, 291.

This is strictly right. Parties dealing in such paper are not expected to be familiar with the signatures of the several indorsers. If satisfied that the last indorsement is genuine, they are not required to look beyond in the absence of a knowledge of such facts as would Impute to them bad faith in case they did not. A person has no right to indorse paper, thereby making it negotiable, and offer it or permit it to be offered in the usual course of business, unless satisfied that the signatures previously appearing thereon are genuine. Mrs. Fish is not in a position in this case to escape liability upon the ground that the prior indorsement was invalid.

Mrs. Fish in her evidence denied having received notice of the non-payment of some of these notes. She did not annex to her plea an affidavit denying the fact of having received such notice, as required by the statute. 1 Comp. Laws, § 603. There was direct and positive evidence given on the trial by the notary, of demand made, protest and notice thereof regularly mailed to the defendant, and the usual notarial certificate was attached to each of the notes. The facts are undisputed, and we discover no error.

The judgment must be affirmed with costs.

The other Justices concurred.