Reeve v. Fraker

| Wis. | Jan 15, 1873

Cole, J.

The objection taken to the complaint by the defendant F. L. Fralcer is, that it fails to state a cause of action. The action is by the plaintiffs against him (and other parties) as an endorser of a promissory note. The complaint alleges the making of the note by the defendant Sullivan payable to the defendant F. L. Fralcer or order, and the delivery of the same, and the several endorsements of the note — the last being to the Commercial Bank of Oshkosh ; but no endorsement by the bank to the plaintiffs is averred. It is now said that the plaintiffs show no title, because there is no endorsement alleged by the bank to them. But the complaint further alleges that the note has not been paid; “ that the plaintiffs are now the lawful oioners and holders of said note; and that the defendants are justly indebted to them thereon ” for the amount stated. The question is, Must tbe plaintiffs trace tbeir title by further alleging an endorsement to them by the bank, or is it sufficient to aver that they “ are now the lawful owners and holders,” without alleging such an endorsement ? It seems to us the complaint is not bad on demurrer for omitting to allege an endorsement to the plaintiffs by the bank. If the plaintiffs are “ the lawful owners and holders ” of the note, they are entitled to sue upon it It seems to us quite immaterial how they acquired the note, whether by sale and assignment or endorsement, so long as they own the note, and the money due upon it belongs to them. The defendant, if he chooses to do so, can put in issue their title and ownership, and compel them to establish these facts by evidence on the trial. No question is made that there is not a sufficient averment of demand of payment and notice of dishonor, to charge the demurrant as endorser.

We think the demurrer was properly overruled, and the order of the circuit court thereupon must be affirmed.

By the Court.— Order affirmed.