86 Mo. App. 660 | Mo. Ct. App. | 1901
This action was begun before a justice by the purchaser, for value and before maturity, of two notes for $250, made by W. H. Parker, payable to the order of H. May, each dated May 12, 1898, and due, respectively, in ninety days, and four months, thereafter. On the back of both of these notes appeared the following indorsements:
“Demand,’Notice and Protest waived.
“H. May,
“E. 0. Parker,
“818 Security Bldg., Co-Maker.”
There was a trial before the justice, from whose decision E. O. Parker appealed to the circuit court. On the trial there, the evidence was conflicting as to whether the words on the back of the notes just above the names of the two indorsers were there at the time such names were subscribed, plaintiff’s testimony tending to prove the affirmative,' and defendant’s tending to show the negative of this proposition. The evidence disclosed that the words “818 Security Bldg., co-maker,” were penciled additions to the notes made by plaintiff when he filed them as his causes of action in the justice’s court, and done at the suggestion of the justice. There was no evidence of pro
1. In speaking of the relationship of parties to bills and notes, it is aptly said by Judge Bliss: “The settled law in regard to this matter is that if the note be' negotiable in form, and made so in fact by the indorsement of the payee, then all other indorsers, unless the contrary be stipulated, are held as such; but if the note be non-negotiable, or be not indorsed by the payee, then, in the absence of an express agreement, the original indorsers are to be treated as makers.” Kuntz v. Tempel, 48 Mo. l. c. 76. To the same effect Bank v. Payne, 111 Mo. 299-300. As the entire evidence shows that the payee of the notes in suit indorsed each of them before E. O. Parker wrote his name on their backs, it is evident, under the foregoing rule, that E. O. Parker was merely an indorser of said notes and released from all liability thereon for want of notice of non-payment, unless he is bound by the terms of the waiver of “demand, notice and protest” under which his name and that of the payee on the notes are written. It is contended by the learned counsel for appellant that this superscription was only a part of the contract of the first name, that of the payee, and it was no part of the contract of the other name, E. O. Parker, written under it. In support of this contention it is urged that indorsements to bills and notes, while embodying the obligations imposed by the terms of the instrument, are yet as to each other separate and independent contracts. This proposition is undoubtedly correct, and if the waiver of demand, notice and protest, above the two names on the back of these notes, had been in terms applied to the contract of the first signer only, there could be no doubt that it would not have affected the contract of the second teubscriber. Such, however, is not the import of the language used. There is nothing in the terms employed to indicate or
II. It is insisted that the penciled words “818 Security Bldg., co-maker” after defendant’s name, put there by plaintiff at the request of the justice when the notes were filed as causes of action, constituted such an alteration of the notes as
Our conclusion is that there is no reversible error in the record and the judgment is accordingly affirmed.