Marienthal, Lehman & Co. v. Taylor

2 Minn. 147 | Minn. | 1858

By the Court

C. E. Blandead, J.

This case, like the case of Thompson vs. McComb, Simpson <& Co., decided at this term, involves the question of the liability to the payee of a party who puts Ms name on the back of a negotiable promissory note payable to order, jbefore the delivery thereof to the payee. In that case the question was raised by demurrer to the answer of the Defendant, and the answer being held to leave the allegations of the complaint substantially admitted, and they being sufficient to show thac the Defendant signed as a maker, the demurrer was overruled and the Plaintiff had judgment. In this case, however, the question is by demurrer to the complaint, and relieves us from the examination of any thing but its allegations. The complaint contains three causes of action, on three promissory notes, which were made by the Defendant White, £( and the Plaintiff says that at the time of the making of said note and before the same was delivered to them of any one, the Defendant H. J. Taylor did sign his name across the back of said note to secure the same, and to induce the Plaintiff’s to receive the same in payment of an existing claim in their favor,” etc. The same allegation is made in respect to the 'manner of the signing of each note by the Defendant Taylor.

The point decided in Thompson vs. McComb, Simpson & Co was that in an action by the payee of a note against a party who had simply signed Ms name across the back of the note, parol evidence conld be admitted to show tbat be bad so signed before dehvery to tbe payee and in what character be intended to become a party to tbe note: of course witnesses can swear to nothing but facts in such an inquiry, and under our system of pleading tbe facts which are to be proved must be pleaded, and tbe jury find tbe intention of tbe party from tbe facts established by tbe proof. In tbat case tbe facts in tbe complaint were fully sufficient to show tbe intention with which tbe Defendant put bis name upon tbe note to have been tbat of an original maker, and tbe answer leaving them substantially admitted, we sustained a judgment for tbe Plaintiff. Adopting tbe principle held in tbat case, and applying it to this, can tbe Defendant under tbe facts stated in tbe complaint be held as a maker of tbe note. Tbe first fact tbat is alleged is “that at tbe time of tbe making of said notes and before tbe same were delivered to tbe payees or any one, tbe Defendant, H. J. Taylor did sign bis name across the back of said notes.” This fact raises tbe presumption tbat be was aware at tbe time be signed, tbat bis act was to give tbe note credit with tbe payee, because in tbe regular course of business tbe place for a note after signature by tbe maker, is in tbe bands of tbe payee, and a request to sign a note in this irregular manner, is notice tbat tbe maker cannot get it off and tbat the payee refuses to take it without tbe additional name; a party under such circumstances signs as much for tbe benefit of tbe payee as does tbe maker, and cannot be supposed to have intended to become an endorser as tbat would not serve tbe purpose, be being if endorser, of necessity second endorser in which capacity tbe payee could not recover against him. Tbe case in 23 Barb. S. C. R. 534, which bolds tbe contrary and allows a first endorsee to recover against a second as cm endorser, on protest and notice, is simply a contradiction of reason, and tbe process by which Mr. Justice Eoosevelt arrives at bis conclusion to bold tbe Defendant as cm endorser “ a sort of finesse and shuffling game ” which is “ below tbe dignity of tbe law,” and this late case, if sustained by tbe Court of Appeals will show tbat, tbat State has by “finesse ” arrived at tbe very point i/nfact where they stood on this question before tbe case of Hall ss. Newcomb, 7 Hill, 416. He thinks tbe fact alone of tbe Defendant signing Ms name before the note had been delivered to the payee, is prima facie inconsistent with his being an accommodation endorser for the payee, and indicative that he is a maker.

The next allegation in the complaint is that the Defendant so signed the note “to secure the same, and to induce the Plaintiff to receive the same in payment of an existing claim in their favor. ” This is not an allegation of a fact it is but the purpose or intention with wMch he acted, in signing his name, which perhaps is proper should be stated, but cannot be-called a traversable fact, and is more in the nature of a conclusion deducible from facts; but is any further fact necessary to be alleged and proved, to sustain the action in the first instance beyond the signing of the note before the delivery to the payee?” It stands thus: the note unexplained, raises the presumption that the Defendant is an indorser, the Plaintiff proves that the Defendant put his name on the note before delivery, this changes the presumption into one against his character as indorsee, and shows that he put his name there to give the note credit with the payee, and that he is responsible to the payee. If there are any facts why this presumption should not obtain, we think it is for the Defendant to rebut it by averment and proof of them.

The Court below, in a very able opinion, seems fully 'to sustain the principle that parol evidence may be admitted to change the relation of the parties as they appear on the notes, but seems to think that the facts stated in the complaint are insufficient to accomplish that purpose. We only differ from him in the view above stated, that the Plaintiff having shown that the Defendant put Ms name on the note before delivery to him has made his prima facia case against him as maker, and the fact of the name being on the back instead of the face of the paper will be presumed merely to indicate the relation which he sustains to the maker as his surety.

It was not necessary to hold this rule in the case of Thompson vs. McCombs, Simpson & Co., as in that case the Plaintiff had set out all the facts of the consideration of the note, and inducing circumstances, taking the onus of the case on himself.

The judgment of the Court below is reversed and the case remanded to that Court for further proceedings.