13 Mo. 234 | Mo. | 1850
The' question in this case, involves the right of a holder of a negotiable note indorsed in blank, by two or more persons having written their names thereon, to fill up the indorsement by simply writing over all the names one assignment, so as to make the assignment the joint act of all those whose names have thus been written.
The right of a holder to fill up blank indorsements is unquestionable — this power is given by every one who thus writes his name on negotiable or assignable paper. But this is not the question. Can the holder, instead of filling up from one to another so as to make a regular claim to the last indorser and from him to the holder, make one indorsement over all the names to himself ? I have no doubt, that by the consent or by the agreement of the persons whose names are indorsed on the note, that such may be made a joint indorsement, but without such understanding or agreement each indorser must be considered a separate actor, who assigns the note and who becomes liable by such assignment.
In this case, the plaintiff in error contends that the court below should have given judgment in their favor, because they set out a joint indorsement in their declaration, and proved it before the court. This reasoning is specious. The court below decided that without showing some authority or agreement by the indorsers, that their act was to be considered a joint one, the law presumed it not to be such ; and without such authority or agreement or consent-on the part of the indorsers, the plaintiffs counsel had no right to make such joint indorsements, and consequently his act was void and there was no legal proof of such joint indorsement.
I feel unwilling to make any decision that may unsettle the general understanding of those concerned most in the use of such negotiable paper, as regards the practice and decisions of our courts.. The indorsement of thenote by Smith is an undertaking by him to pay Robbins and by Robbins to pay the holder, in the absence of all proof that Smith and Robbins jointly indorsed the same. I think that public policy is best promoted by adhering to the practice which makes these indorsements separate and not the joint act of all those whose names are put on the back of the note.(
It has been well observed by the defendants’ counsel, that the rule applicable to commercial paper is in force in this case, and the holding these defendants as joint indorsers would authorize all indorsements to be held to be joint; and would destroy and violate the rights ef a last or subsequent indorsee ; and
(a) See Farmers Bank v. Gaiten, 34 Mo. R. 122; Tumilty v. Bank of Mo., post, 276; Goodfellow v. Landis, 36 Mo. R. 168.
