| Minn. | Jul 15, 1862
By the Cowrt
This Court, in McComb, Simpson & Co. vs. Thompson, 2 Minn., 139, and in Marienthal, Lehman & Co. vs. Taylor & White, id., 147, held, that a party who writes his name upon the hack of a negotiable promissory note, before its delivery to the payee, and for the purpose of giving it credit with him, becomes thereby a joint maker, and that parol evidence may be given to prove these facts. The same doctrine was also held by the Supreme Court of the Territory, in Pierse vs. Irvine et al., 1 Minn., 369; Rey
The application of the doctrine of these cases to the one at bar, would seem to determine it at once in favor of the Plaintiff below ; for we are unable to distinguish between the facts of this, and the cases alluded to. The Defendant below claims, however, that there is a distinction in this:' that in the present case the parties had verbally stipulated that the Defendant should be held as an indorser only; and that the fair inference from the other decisions is, that the intention of the parties should be carried out; and that a party signing a note under such circumstances, though for some purposes regarded as a joint maker, is nevertheless entitled to demand and notice as an indorser.
We are by no means certain that such inferences may not reasonably be drawn from these cases, but are quite sure that this Court did not intend so to decide. The positive authority, however, of no decision, extends beyond the facts on which it is based; and we may readily decline to follow to conclusions which the language employed in these decisions may seem to lead, if the questions were not in issue in those cases. In the cases cited from 1 Mi/nn., the Court, it is true, intimate that a person thus indorsing a note before delivery, and to give it credit with the payee, though held as a joint maker, might yet be entitled to the same demand and notice as commercial indorsers ; but it is to be remarked that no question of this kind was in issue in either of those cases, demand and notice being expressly admitted in each and the Court in fact declined to pass upon the question after it had been suggested. And the cases in 2 Mmn., decided, by this Court, as at present constituted, go only to the extent of holding that, as between parties cognizant of all the circumstances, it might be proved by parol, that a party, whose name appeared upon the back of a negotiable note, where the names of indorsers only usually are found, was in fact a joint maker, who had signed' his name in this place, before the delivery to the payee, either through “ignorance of the proper place for his signature, or for the purpose of evidencing the relation which he held to the other joint maker. But this ought not to be
Suppose that the holder of negotiable paper, while intending only to transfer the same by indorsement, in accordance with a contract for indorsement,'should, through ignorance or mistake, place his name under that of the maker, instead of across the back of the instrument, — is it to be supposed, in an action by such an indorsee against his immediate indorser, to recover against him as a joint maker, that the latter would not be permitted to show the facts and circumstances attending the transaction, and that his signature was affixed to the instrument long after its execution and delivery to the payee ? We have little doubt that the party in such a case would be allowed to make proof of these facts, because they would simply show that he had never in fact made the contract to which his signature is appended.
But such a case, and each of the several cases before cited, would differ altogether from one in which the parties have deliberately reduced their contract to writing, in terms of their own selection or adoption, and an attempt is afterwards made to contradict those terms, by showing that the parties meant something other than the terms import, or intended that they should have an effect different from that which the law attaches to them. In such a case the parties would not be allowed to contradict the writing. The terms of the contract, and the facts and circumstances attending it, determine its legal character and effect, whatsoever the parties may have considered it; and if the facts and circumstances attending the signing of the Defendant Spencer’s name to the note upon which this action is brought, stamp his conti’act or promise as the contract or promise of a joint maker, all the consequences incident to that relation would necessarily follow, at least so far as the payees are concerned, whether his name appears on the back of the note, or in the same place with the other joint maker. And if he had signed his name with the other maker before delivery, no Court would have
Judgment affirmed.