Hapgood v. Watson

65 Me. 510 | Me. | 1876

Walton, J.

We think the plaintiff is entitled to judgment in this case.

I. The fact that the note declared on was made payable to one of the members of the firm by whom it was signed, is no objection to a recovery. Such a note is valid in the hands of an indorsee, and a suit thereon may be maintained by him precisely as if the note had originally been made payable to some one not a member of the firm. Davis v. Briggs, 39 Maine, 304. Pitcher v. Barrows, 17 Pick., 361. Thayer v. Buffum, 11 Metc., 398.

II. Nor does the fact that the note is declared on as the promise of the defendant alone, preclude a recovery. It is well settled that the joint promise of several may be declared on as the individual promise of each. If, in proving the defendant’s promise, the evidence happens to show that others also promised, a vari-, anee is not thereby created between the allegations and the proof. It is none the less the defendant’s promise because others promised with him. It is true that the non-joinder of a co-promisor is sometimes a valid ground of defense; but to make it so, it must be pleaded in abatement; it can never be taken advantage of under the general issue. White v. Cushing, 30 Maine, 267. Barry v. Foyles, 1 Peters, 311. Scott v. Shears, 9 Cush., 504. Reed v. Wilson, 39 Maine, 585.

III. Nor is the plaintiff’s right to recover barred by the statute of limitations. The evidence satisfies us that the defendant has resided out of the state for a sufficient length of time to avoid this ground of defense. It may be that the right to recover against his co-promisor is barred ; but that is no defense for him. P. S., c. 81, § 99.

IV. We entertain no doubt whatever of the power of the court to allow the amendment of the declaration in the particular stated in the report. No new cause of action was thereby introduced.

Judgment for plaintiff.

Applbton, C. •!., Dickerson, Barrows, Danfoetii and Libbey, JJ., concurred.