59 Ga. App. 468 | Ga. Ct. App. | 1939
Hopkins Automobile Equipment Company filed suit on a promissory note signed, “D. P. Lyon (seal),” and on the back of the note was the blank indorsement, “R. E. Lyon.” The note was dated August 15, 1929. Suit was filed November 9, 1937. The defendant, R. E. Lyon, filed a general demurrer alleging that no cause of action was set out as against him, and that it affirmatively-appeared from the petition that the note was barred by the statute of limitations, his signature not being under seal. The court sustained this demurrer and error is assigned upon this ruling.
Before the passage of the negotiable-instruments law (Ga. L. 1924, p. 126 et seq.), “A person who merely writes his name on the back of such a paper [a note or bill of exchange] to guarantee its payment, but whose indorsement is neither essential to nor
Before the adoption of the uniform negotiable-instruments law, an irregular indorser, or an accommodation indorser, who merely wrote his name thereon to guarantee payment, and whose signature was not necessary to transfer title, ivas a surety, and was not liable on the paper as an indorser, and unless such signature was under seal his liability thereunder was barred after the lapse of six years. Mitchell v. Graham, 27 Ga. App. 60 (107 S. E. 373). Since the adoption of the uniform negotiable-instruments law, a person so
On the face of the instrument sued on E. E. Lyon, under the decision in the Massell case, supra, was an indorser and entitled to presentation and notice of dishonor. Being an indorser, the same statute of limitations applies to him as applies to the maker of the instrument, or as would apply to the payee upon his indorsement thereof to pass title. Such being the case the petition set out a cause of action, and the note being under seal, the indorser thereon must be taken to accede to the expressed nature and character of the instrument, and to be bound thereon as a technical indorser would have been bound under the law as it was before the adoption of the uniform negotiable-instruments act.
This holding does not prevent such an indorser from alleging and proving, as between the immediate parties to the note, his intention to be bound in a capacity other than indorser. Massell v. Prudential Ins. Co., supra. Whatever may be the rule in other States with respect to allowing parol evidence to show that while, as a matter of law, prima facie, any person other than a maker, acceptor, or drawer of a negotiable instrument who places his name thereon is an indorser, unless he clearly indicates to the contrary by appropriate words (2 Daniel on Negotiable Instruments (7th ed.), 846), this matter is fixed by statute in this State. In Pickett v.
The petition set forth a cause of action. Under the negotiable-instruments act, K. F. Lyon is an indorser on such note. Such indorser legally occupies the same position as does what we have ordinarily termed a technical indorser, and the same statute of limitations applies as would apply to the maker of the note, whether such indorsement is under seal or not. It was error to sustain the demurrer.
Judgment reversed.