9 Gill 284 | Md. | 1850
delivered the opinion of this court.
The appellee, who was the plaintiff in the court below, claimed the amount of a promissory note, which, according to its language, was negotiable and payable at the Cumberland Bank of Allegany. The note was drawn by one Jonathan Butler, payable to the plaintiff in the court below. On the back of this note so tobe negotiated and paid, the names of the
At the time of the trial, there were written over their signatures, these words:
“August 6th, 1845. For value received, we undertake to pay to John Coombs, the sum of money, in this note specified, according to the tenor and effect of said note.” These words are in the handwriting of the appellee, the holder of the note.
The appellants gave testimony, that some time in the summer of 1848, the appellee, speaking of the note of Butler, then in his possession, said that he had good endorsers upon it; that at the maturity of said note, Butler came to him and offered to pay the said note off promptly; Butler at the same time remarking, that if he (the appellant) did not want it, he, (Butler,) would like to have his money again, or for a longer time; to which proposition he assented, and permitted Butler to retain the money.
It was insisted, that this was a new loan to Butler, and discharged the previous debt, and with it any liability of the appellants; and the defendant below prayed the court so to instruct the jury. The court refused, and we think correctly. The promise to let Butler have the money a longer time, being without consideration, was nudum pactum. See Planters Bank of Prince Georges county against Sellman, 2d Gill & Johnson, 230.
This action is brought, not against the drawer of the note, but against the two persons who indorsed it, or who wrote their names on the back of it.
The case has been argued on both sides, as if this was a blank indorsement. If we could so understand it, we should find no difficulty in distinguishing this case from former decisions of this court, to which reference was given to us. The law in such cases is also to be found in Story on Prom. Notes, secs. 479, 480.
We cannot, however, assume, that these were original blank endorsements. The words written over the names of the ap
We, however, reverse the judgment of the court below, because of ibe instruction which was given, and which is to be found in the second exception. We do not think with Allegany county court, that the note itself \s prima facie evidence, that the defendants (appellants) placed their names upon the the back of said note, not in the character of endorsers of said note, but as makers, or original promissors.
There was no evidence furnished by the written paper, or aliunde, of any previous indebtedness to the appellee. It is not shown by what authority he wrote the words, which are found over the signature; how or when the appellants wore prevailed upon to have any connection with, or to make themselves answerable for, any debt which Butler might owe to, or was about to contract with, the appellee.
It appears too, that this was a note, negotiable as well as payable at the Cumberland Bank of Allegany, and is in form, not only what the charter of that bank says, that all notes there to be discounted must be, but is in the usual form of notes to be discounted by banking institutions only. It is then prima facie, a note to be offered for discount at hank and not elsewhere, and is made payable to the appellee, in order that he may become the first indorser.
It is immaterial, whether the second indorser writes his name before or after the endorsement by the payee, but the mischief would be incalculable, if, when the person who is relied upon as the first indorser, gets possession of a note already endorsed by one, who, according to the understanding of the parties, is to be the second endorser, he can fill up the blank, which prima facie is left for his own name, with such an undertaking as is here offered in evidence.
We cannot discover tiiat the appellant was aggrieved by the opinion of the court, expressed in the third bill of exceptions.
The exceptions taken by the plaintiff in the court below,
1st and 3rd exceptions affrmed; 2nd dissented from.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.
