40 Ark. 545 | Ark. | 1883
OPINION.
Heise was sued upon the following instrument:
“On or before the first day of November, 1880, I promise to pay "W. N. Bumpass, or order, the sum of $210 for value received.
. February 3, 1880.
F. G. Davidson.’-’
Across the face of it was written:
“Accepted, Joseph Heise.”
The complaint alleged that Davidson had applied to Bum-pass to purchase two mules upon credit; that the price and terms of credit had been agreed on, but Bumpass was unwilling to sell without security; that .Heise, Davidson’s father-in-law, was proposed and accepted as surety and the note copied above, with its ambiguous indorsement, was made, after which the mules were delivered to the purchaser; that Heise was a foreigner, and all the' parties to the instrument were ignorant of the forms of business, and the distinction between the indorsement of a promissory note and the acceptance of a bill of exchange, but the real intention of Heise was to become a surety or guarantor for his son-in law, and protest and notice were averred.
Heise demurred to the complaint as disclosing no legal liability on his part. We think the complaint states a good cause of action. It seems that where an instrument is so irregular that it is doubtful whether it be a bill or note, the holder may treat it as either at his election. Daniel on Neg. Inst., Sects. 131, 132, 133.
Heise’s so-called acceptance was equivalent to an endorse-1, . . _TT ment of the note before it was put into circulation. When * a promissory note, made payable to a particular person or order, is first endorsed by a third person; such third person is an original promissor, guarantor or indorser, according to the nature of the transaction, and the understanding of the parties at the time. If he puts his name in blank on the back of the note at the time it was made, and before it is endorsed by the payee, in order to give the maker credit with the payee, he is to be considered a joint maker of the note, and not a mere guarantor. Nathan v. Sloan, 34 Ark., and cases cited; Killian v. Ashley, 24 Id., 511; Martin v. Good, 95 U.S., 90. And in this view questions of presentment, demand, protest and notice become immaterial.
After Heise’s demurrer was overruled, he answered, setting up several defenses, of which we notice only two.
1. It was alleged and proved that Heise made his dorsement on Sunday. But the transaction in which note originated did not take place on that day; the note does not bear that date, and there is no date. to the indorsement; it was signed in the absence of the payee, and there is no sufficient evidence that it was delivered to him on the Sabbath. In Trieder v. Commercial Bank, 31 Ark., 128, this Court held that an innocent indorsee was not affected by the circumstance that a note, dated on a week day, was in realty executed on Sunday. And there is no reason why a note should be avoided in the hands of a payee, who was not aware of its invalidity, and had not himself participated in any violation of the statute prohibiting labor and business on that day. Bay v. Cattell, 12 B.Mon., 532; Dahoney v. Dahoney, 7 Bush, 217; Hilton v. Houghton, 35 Me., 143; Commonwealth v. Kendig, 2 Pa., St., 448; Lovejoy v. Whipper, 18 Vt., 379.
2. Another defense was that the action was prematurely brought. The note was payable on the first of November. Suit was begun on. the third. But the instrument sued on was a negotiable promissory note, and the makers were entitled to grace. Gantt’s Big., Sec. 562. The cause of action did not accrue until the fifth of November, Heise having the whole of the fourth within which to pay, unless a demand and refusal of payment had been made on the fourth, in which case a right of action would have accured at once. Holland v. Clark, 32 Ark., 697.
Reversed and remanded to the Circuit Court with directions to abate the action.
