Kiel v. Choate

92 Wis. 517 | Wis. | 1896

NewmaN, J.

It was settled for this court by Cady v. Shepard, 12 Wis. 639, that, where a note is indorsed by a payee and a third party, the legal inference from the instrument itself that the payee is the first indorser may be explained by oral evidence of the facts and circumstances under which the indorsement was made, in order to show the proper order of liability among the indorsers.y'The in-dorsement itself is not such a written contract between the indorsers themselves as cannot be explained by oral evidence. Between the indorsers, the presumption no doubt is that, as ■ between themselves, their liability is in the order in which their names appear upon the paper. But that is a fact which is collateral to the contract of indorsement, and may ■be proved and the presumption rebutted by oral evidence. The authorities are nearly or quite uniform. 2 Rand. Com. Paper, §§ 140, 741, 908, and cases cited; 1 Daniel, Neg. Inst. (3d ed.), §§ 703, 704, and cases cited; 2 Whart. Ev. *.(3d ed.), §§ 942, 1060, and cases cited in note 1; 18 Cent. Law J. 382; Browne, Parol Ev. § 83, and cases cited. It ■ does not conflict with .the rule that parol evidence is inadmissible to contradict or vary the terms of a written contract. No doubt, within this rule, a blank indorsement is to be treated as a written contract. But the blank indorse- • ment forms a new and independent - contract between the •.indorser and indorsee. It implies a promise that the paper is due and payable according to its tenor; that the maker •or previous indorsers will pay it at maturity, when duly 'Called upon and notified; and that the indorser will pay the ..same if they do not. The promise is made to the immediate ■.indorsee not only but to each subsequent indorsee. It is . an agreement between the indorser and subsequent holder of the note. But it does not import an agreement among the indorsers themselves as to the order or manner of their Liability. The indorser is liable alone on his contract of in-dorsement, and not jointly with the maker on the note .itself. Boyd v. Beaudin, 54 Wis. 193, 201; 1 Daniel, Neg. Inst. (3d ed.), § 669; 2 Parsons, Notes & B. 23.

The obligation of one indorser to contribute to one who has paid the note does not arise from any breach of the con-ttract of indorsement, but only from its fulfillment. It is not ■an action upon the contract of indorsement at all, but is a liability which springs collaterally from it. It arises out of an agreement between the indorsers themselves. In the ab•-■sence of evidence of a special agreement, the law implies that they have agreed to be liable severally, in the order in* which their names appear upon the paper. But this presumption is of little weight in the presence of evidence showing an actual agreement. Such evidence does not contradict or vary the contract of indorsement, which is only collaterally in issue. Browne, Parol Ev. 18; Abb. Tr. Ev. 7, 294 1 G-reenl. Ev. § 89; Phillips v. Preston, 5 How. 278. The-charge was correct in substance, and fairly submitted the-question to the jury.

By the Court.— The judgment of the circuit court is affirmed.