59 Minn. 420 | Minn. | 1894
The assignments of error are sufficient.
1. The complaint is on a promissory note for $500, made by the defendant Howes to the order of the defendant Smith, and indorsed on the back by Smith and the defendant Rockwood. The name of Rockwood is written under that of Smith, and they both admit in their answers that the defendant Howes and Rockwood signed the note before its delivery for the accommodation of the defendant Smith, who delivered it to plaintiff to secure a claim held against him by it.
Out' of the questions presented is whether Smith and Rockwood are to be held as makers of the note or only as indorsers. It is well settled by the decisions of this and other courts that under such circumstances the nominal payee of the note, who signs his name on the back thereof, cannot be held as a maker, but only as an indorser.
The name of Eockwood is signed under that of the nominal payee. The authorities hold that in such a case Eockwood is not the anomalous indorser who is held as a maker, but only a second indorser. 1 Daniel, Neg. Inst. §§ 707, 707b; Clapp v. Rice, 13 Gray, 403; Dubois v. Mason, 127 Mass. 37; Greusel v. Hubbard, 51 Mich. 95, (16 N. W. 248.) It is well settled that the indorser before delivery who can be held as maker is the anomalous indorser, who neither in fact nor as a matter of form can be considered as having been payee or holder of the note when he indorsed the same. See Dennis v. Jackson, 57 Minn. 286, (59 N. W. 198;) Stein v. Passmore, 25 Minn. 256, and eases cited. But in the present case, as a matter of form, it can be considered that Eockwood was a holder of the paper when he indorsed it. It appeared from the instrument itself, unexplained, that Smith was the real payee, that he indorsed and transferred it to Eockwood, who in turn indorsed and transferred it. The law says that the parties intended to bind themselves by the relations thus apparently assumed, and that therefore they are indorsers, and not makers. 1 Daniel, Neg. Inst. §§ 707, 707b, and cases cited. The parties must be held as on the face of the note when negotiated they had agreed to be held.
2. On the trial the plaintiff offered evidence to prove that at the maturity of the note payment had been duly demanded and refused, and notice thereof duly given to Smith and Eockwood. These two defendants objected to it as incompetent and immaterial, and the objection was sustained. The plaintiff then rested. The defendants offered no evidence, and a verdict was ordered for plaintiff on its motion for the amount of the note. A new trial was afterwards granted on the motion of these two defendants, for the reason that they could be held only as indorsers, and no demand and notice of nonpayment had been proved. From that order plaintiff takes this appeal, and contends that these defendants are estopped to urge that there was no proof of such demand and notice of nonpayment. It is urged that a party who objects to competent evidence to prove a fact is estopped to say that the fact is not proved, citing authorities, none of which sustain the position except Bigelow on Estoppel
We are not willing- to adopt the rule contended for; while it would serve the ends of justice in some instances, in others it -would not.' The party objecting- would be in danger of /aiving his rights if he did not object, and of losing- his rights if he did object, because, if his objection was sustained, he could not offer evidence to disprove the evidence thus ruled out. Under such a rule the opposite party would often refuse to take the risk of objecting to incompetent evidence, the introduction of which would confuse the issues, prolong the trial, and waste the time of the court.
This disposes of the case, and the order appealed from should be affirmed. So ordered.
(Opinion published 61 N. W. 457.)
