delivered the opinion of the court.
The complaint in this action alleges that on December 29, 1917, Ruth Berchot and Dave Berchot executed and delivered to the defendant their promissory note for the sum of $500, payable December 29, 1920, with interest at eight рer cent per annum, payable semi-annually; that the defendant in due course, for a valuable consideration, and prior to its maturity, indorsed and delivered this note to the plaintiff, who thereupon *553 became and ever since has been the owner and holder thereof; that by reason of said indorsement and delivery, the defendant became indebted to the plaintiff for the amount of said note and interest; that no part of the samе has been paid, except the interest thereon down to December 29, 1919, and asks judgment for the balance due.
This note was a non-negotiable instrument. It contains a provision identical with that found in the note considerеd in the case of
Great Falls Nat. Bank
v.
Young,
The defendant’s answer admitted the execution of the note, but alleged that it was never the owner thereof, and denied that it ever sold, assigned or delivered the same to the plaintiff for a valuable or other consideration, and set out in detail the circumstances surrounding the execution of the note and its delivery to the plaintiff. In brief, the facts so alleged are: That plaintiff had been a customer of the defendant bank for a long time prior to December 29, 1917, and during that period one J. A. Hatch was its cashier; that on said date the plaintiff had on deposit with defendant a sum of money largely in excess of $500, and some time prior thereto had asked Hatch to procure for him (plaintiff) a loan of $500, secured by a real estate mortgage, and for the convenience and benefit of the plaintiff to take the same in the name of the bank; that Hаtch, without the knowledge, consent or authority of the bank or its directors, agreed to do so, and pursuant to such arrangement, and as the agent of the plaintiff, did, on December 29, 1917, loan $500 of plaintiff’s money to the Berchоts, taking the note in suit as evidence thereof, and also took a real estate mortgage to secure the same, both in the name of the bank, and thereupon debited the account of plaintiff $500 and credited thе Berchots with this amount on the books of the bank; that thereafter it caused said note and mortgage to be assigned to the plaintiff without consideration, for the reason that it had no interest therein, and solely for the purpose of enabling the plaintiff to collect the note.
*554 The affirmative allegations of the answer were denied by the plaintiff’s reply. The case was tried before a jury and resulted in a verdict and judgment in favor of the dеfendant. Plaintiff’s motion for a new trial was denied, and he has appealed from the judgment.
1. The plaintiff’s first contention is that the court erred in overruling his objection to the introduction of any testimony on the part of the defеndant, for the reason that the answer did not state facts sufficient to constitute a defense.
Stripped of all evidentiary recitals, the answer sufficiently pleaded a lack of consideration for the indorsement of the instrument by the bank.
(United States Nat. Bank of Red Lodge
v.
Chappell,
2. In his complaint and the evidence introduced to sustain it, plaintiff proceeded upon the theory that the defendant was liable to him upon the note as an indorser. In the course of the testimony, in rebuttal, counsel sought to show that at the time plaintiff was negotiating for the purchase of the note the cashier of the bank represented to him that defendant would “see that it was paid,” and that рlaintiff relied upon this statement in making the purchase. The court refused to admit the latter part of this testimony, and this is assigned as error.
By seeking to introduce this testimony, as well as by his offered instruction No. 3, which was refused by the court, рlaintiff was apparently trying to abandon the theory of his complaint and to hold the defendant as a guarantor upon the note in suit. It is incumbent upon a party when he brings an action to so frame his pleadings as to present some definite, certain
*555
theory upon which he predicates his right to relief, and he will not be heard to say that the court committed error in holding him to the theory which he assumed.
(Waite
v.
Shoemaker & Co.,
3. The undisputed evidence in the case showed that as soon as the defendant learned that its former cashier Hatch had negotiated the loаn for the plaintiff in its name, it disclaimed any interest therein and immediately caused an assignment of the mortgage to be made to the plaintiff. Based upon this evidence alone, plaintiff asked the court to instruct the jury upоn the subject of ratification. The evidence above referred to did not tend to show that the bank in any way ratified the acts of Hatch, and the court did not err in refusing to instruct the jury on the subject of ratification.
4. Plaintiff’s requested instructions Nos. 4 and 8, which were refused by the court and which refusal is made the basis of assignments of error Nos. 8 and 12, are copies of sections 8459 and 8473, Eevised Codes of 1921, which are embraced in the Negotiable Instruments Law. Thesе sections are not applicable in an action based upon a non-negotiable instrument, and the court did not err in refusing to give instructions embodying them.
5. The plaintiff asked the court to give the following instruc. tion: “You are instructed that a person placing his signature upon an instrument, otherwise than as maker, drawer, or acceptor, is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bоund in some other capacity. This is true of corporations as well as individuals.” Except for the last sentence, this is a copy of section 8470, which is a part of the Negotiable Instruments Law.
"Where the matter is not regulatеd by statute, there has been much conflict in judicial decisions as to the liability of the payee of a non-negotiable instrument who writes his name on the back thereof and transfers it to another. Cases setting out the *556 different viеws of the liability thus created will be found collected in 8 C. J. 57. A majority of them hold that such a transaction amounts only to an assignment or transfer of title and creates no liability on the part of the assignor to his assignee. Howevеr, in this state the matter is controlled by statute. Section 7415, Revised Codes of 1921, provides: “A non-negotiable written contract for the payment of. money or personal property may be transferred by indorsement, in like manner with negotiable instruments. Such indorsement shall transfer all the rights of the assignor under the instrument to the assignee, subject to all equities and defenses existing in favor of the maker at the time of the indorsement.”
The liabilities imposed upon one who transfers title to such an instrument in the method provided for in the above-quoted section are set forth in section 7617 as follows: “One who sells or agrees to sell an instrument purporting to bind anyone to the performanсe of any act, thereby warrants that he has no knowledge of any facts which tend to prove it worthless, such as the insolvency of any of the parties thereto, where that is material, the extinction of its obligations, or its invalidity for any cause.”
By transfer of the title of the note in the method above set out, the defendant did not become an “indorser” of the note with the attendant liabilities, in the sense in which that term is used in section 8473 of our Negotiablе Instruments Law. The provisions of that Act deal only with
negotiable
instruments.
(United States Nat. Bank of Red Lodge
v.
Shupak,
In 1 Daniels on Negotiable Instruments, sixth edition, 709, it is said: “If the note be not negotiable, it is plain that such party [one who writes his name on the back of the instrument] cannot be regarded as аn indorser, for the simple reason that there is no such thing as an ‘indorsement’ in the strict and proper commercial sense of any other than negotiable paper.”
While some of the liabilities imposed by section 7617 upon one who assigns a non-negotiable instrument by indorsement are the same as those imposed upon the indorser of a
*557
negotiable instrument by section 8473, such transfer does not carry with it a legal liability on the part of the аssignor to pay the amount of the claim, in the absence of a special agreement to that effect. Such was the holding of the supreme court of California in
Kendall
v.
Parker,
Counsel contend that because the -note in question contains a provision to the effect that the makers and indorsers waive protest,
etc.,
this indicates that it was the intention of the defendant, by making the indorsement which it did, to become liable thereon as an “indorser,” in the sеnse in which that word is used in the Negotiable Instruments Law, and therefore the requested instruction should have been given. To support this contention they rely upon the case of
First Nat. Bank
v.
Falkenhan,
The offered instruction was not applicable to the facts in the case, and the court properly refused to give it.
6. At best, plaintiff’s offered instruction No. 2, which the court refused to give, was the bald statement of an abstract proposition of law, without any attempt to connect it with the evidence in the case or any rule laid down in other instructions given by the court. When the facts in a given case are few and simple and of such a nature that general principles of lаw may be easily applied, the giving of an instruction
*558
embodying abstract propositions, though open to criticism, is not reversible error.
(Kirk
v.
Montana Transfer Co.,
There are other assignments of error set out in plaintiff’s brief, but they are not of sufficient importance to require special mention.
No error appearing, the judgment is affirmed.
Affirmed.