85 F. 120 | 8th Cir. | 1898
after stating the facts as above, delivered the opinion of the court.
The blank indorsement of a promissory noie by a party who is neither a payee, indorsee, nor assignee thereof is declared by the statutes of the state of Iowa to constitute a guaranty of the payment of the note by the indorser. McClain’s Code of Iowa, § 3265. Lyon, Potter & Co. therefore appeared to be an accommodation indorser or guarantor of the payment of the note in suit upon the face of the paper. That note, when it was presented to the bank for discount with this blank indorsement upon it, must, in view of the statute of the state of Iowa to which we have referred, he deemed to have been notice to the defendant in error that the presumption was that Lyon, Potter & Co. was an indorser of the note without consideration for the accommodation of another, or a mere guarantor of the payment of the note. Bank v. Remsen, 158 U. S. 337, 344, 15 Sup. Ct. 891; Bloom v. Helm, 53 Miss. 21; Hendrie v. Berkowitz, 37 Cal. 113; Stall v. Bank, 18 Wend. 466; Overton v. Hardin, 6 Cold. 375; Lemoine v. Bank, 3 Dill. 44, Fed. Cas. No. 8,240; Erwin v. Shaffer, 9 Ohio St. 43; 1 Daniel, Neg. Inst. § 365; 1 Edw. Bills & N. p. 105, § 104. This presumption, however, was not conclusive, and the question was open for the consideration of the jury, under the evidence, whether the plaintiff in error indorsed the note in consideration of some benefit to itself, or without any consideration, and for the sole benefit of Martin, or of the C. H.
There was evidence in this case that the O. H. Martin Company had sent monthly statements of their liabilities to Lyon, Potter & Co., or to Potter, its treasurer, and that he knew, when he made the indorsement, that a note of $1,500, previously made by the C. H. Martin Company and indorsed by Lyon, Potter & Co. was falling due; that the C. H. Martin Company owed the plaintiff in error $2,000, which was just maturing; that it owed other creditors $1,500, which must be paid;
The erroneous view of the law upon the question we have been discussing would nevertheless have been harmless in this case if the court had not departed from the sound law which it gave to the jury in another part of its charge in these words:
“The testimony uncontradicted shows that when this note was presented hy the payee, and discounted and purchased hy the plaintiff bank, it bore upon the back the signature, ‘Lyon, Potter & Co. E. A. Potter, Treasurer.’ The bank is presumed to take notice from that that Lyon, Potter & Co. are accommodaition indorsers or guarantors.”
We say that the charge relative to Martin’s indorsement would not have been prejudicial in this case if this correct declaration of the law had been adhered to, because the note itself would have given notice of the accommodation character of the indorsement, even if Martin had placed his name upon it when he discounted it. But the court failed to adhere to this statement. It fell into the fatal error of contradicting this declaration in another portion of its charge in these words:'
“Understand that, even though this paper is accommodation paper, under the rule I have given you, yet if the plaintiff bank, without notice of its being accommodation paper, for a valuable consideration, in good faith, and before maturity, duly .acquired this note, then the defendant corporation would be liable to the bank therefor.”
The inevitable result was that the jury was directed to find for the defendant in error, notwithstanding the fact that they might find the indorsement of Lyon, Potter & Oo. was without consideration, if they believed that the bank took the note without notice of that fact before its maturity, when, the note itself was notice that the presumption was that this indorsement was for the accommodation of another, and the bank could not take the note without this notice which it