41 S.C. 81 | S.C. | 1894
The opinion of the court was delivered by
This was an action to recover the amount due on a promissory note, dated 15th of April, 1886, whereby one W. L. McDonald promised to pay, on the 1st day of December after date, to one J. R. Boyles, the sum of $260, with interest, &c. The name of the defendant, J. E. McDonald, is written across the back of the note, and below that is written the assignment of the note to J. A. Hinnant, judge of probate and public guardian, signed by J. E. Boyles, and dated 27th of January, 1887. In the complaint it is alleged: 1st. That the said W. L. McDonald executed and delivered the said note to the said J. E. Boyles. 2d. “That the said promissory note was endorsed by the defendant, J. E. McDonald, by writing his name on the back thereof, and he thereby promised to pay to the said J. E. Boyles the said sum of money, with interest as aforesaid, and was delivered so endorsed to the said J. E. Boyles.” 3d. That the note so endorsed was duly assigned to the said J. A. Hinnant, judge of probate and public guardian, on the 27th of January, 1887. 4th. That the plaintiff is the duly elected and qualified successor of the said Hiunant in the said office of judge of probate, and as such is the legal owner and holder of the said note.
The defendant in his answer sets up several defences: 1st. A general denial of each and every allegation contained in the complaint. 2d. That no demand was made for payment of
The plaintiff offered testimony tending to show the genuineness of the several signatures on the note and its endorsements, and that he was the successor in office of the said Hinnant, and closed his case. Thereupon the defendant moved for a non-suit, upon the ground, substantially, that there was no testimony tending to show that, the defendant ever made any promise to pay the note. The motion for a non-suit was granted, and the plaintiff appeals from the judgment entered thereou, upon the several grounds set out in the record; and the defendant gives notice that he will seek to sustain the non-suit upon certain additional grounds likewise set out in the record.
There can be no doubt that the authorities cited by the counsel for appellant conclusively show that a third person may, under certain circumstances, make himself liable, as one of the original makers, on a note signed by one person, payable to another, by simply writing his name across the back of a note, whether it be negotiable in form, or unnegotiable, as the note here in question is, inasmuch as it is not payable to order or to bearer. But in order to fix such liability upon a third person who has written his name across the back of a note made payable by one person to another, it is necessary for the holder to show that such endorsement was made at the time, or before, delivery of the note to the payee — in other words, that it was a part of the original transaction. See Tucker v. English, 2 Speer, 673, and the comments thereon in the subsequent case
It is very obvious, therefore, that the distinction drawn between the two cases was not based upon the fact, that in Tucker v. English the note was under seal, but upon the fact that in Cockrell v. Milling there was evidence showing that the name of the defendant was written on the back of the note before the delivery of the note to the payee, and was, in fact, a part of the original contract. Indeed, it appears from the opinion in Cockrell v. Milling that the note there in question was signed by McDowell, the principal debtor, under his seal. Indeed, we do not see how, in the very nature of things, it is possible to hold a third person, who writes his name on the back of a note, as one of the original makers, uutil it is shown by evidence that it was written there at the time of the making of the note. One cannot be regarded as a joint, or a joint and several maker of a note, by writing his name ou the note after it has been made and passed beyond the control of the original maker. One cannot join in making a note which has already been made and delivered to the payee.
It seems to us, therefore, essentially necessary that in order to hold a third person liable as maker of a note, the mere fact that his name appears on the back of the note is not'sufficient,
As there was no evidence iu this case tending to show that the name of the defendant was endorsed on the note here in question at the time it was delivered to the original payee, and no evidence-that the defendant in any way participated in the
The judgment of this court is, that the judgment of the Circuit Court be affirmed.