48 Mo. 61 | Mo. | 1871
delivered the opinion of the court.
A demurrer to the petition having been sustained, the plaintiffs bring the cause into this court by writ of error.
It appears from the petition that the commercial firm of Dam-eron Brothers drew their draft or bill of exchange upon the plaintiffs, whereby the plaintiffs were requested to pay to the order and charge to the account of the firm the sum of $2,000. Before the bill was put in circulation, the drawers, to whose order it was payable, indorsed it, and also, in order to give it additional credit -and currency, procured its indorsement by the defendant. Prior to its acceptance the drawers had it discounted at the Exchange Bank of St. Louis, the bill not having previously passed from their possession. Subsequently the drawees (the plaintiffs) accepted and paid the bill, and, as they claim, at the request and for the accommodation of Dameron Brothers and the defendant. This claim is based upon the facts already detailed, and upon the additional fact alleged in the petition, that the defendant indorsed the bill knowing at the time that the drawers had neither funds nor credits of his, or of the drawers, in their hands with which to meet it.
The counsel for the plaintiff seem to base their case upon the theory that the defendant, under the circumstances, is to be held *.nd treated as a joint drawer of the bill, and not merely as a technical indorser. His position is compared to that of a party who writes his name on the back of a promissory note, where he is neither the payee nor an indorsee. Authorities are cited to prove that in such a case the party so writing his name upon the back of the note is liable, prima facie, as a joint maker. (Lewis v. Harvey, 18 Mo. 74; Baker v. Block, 30 Mo. 225.) There is n.o doubt of the soundness of the principle invoked, but it is of no service here. It applies to a different state of facts, namely, when the party so writing his name upon the paper is
It is not doubted that'the drawees might have accepted and paid the bill at the request and for the accommodation of the defendant or indorser, and so as to have given them a right of action against him for the amount paid. The defendant not being a joint drawer, the difficulty is that the petition fails to show that the drawees accepted and paid at his request, or in consequence of any special arrangement or understanding'between them and him. The suit is not upon the bill, but is for money paid at the defendant’s request, and there is no request shown. The plaintiffs seek to get over this difficulty by treating the defendant as a joint drawer, and as having requested the plaintiffs to accept and pay in the act of drawing. But, as has already been showü, he did not join in drawing it, nor is he to be treated as having done so. That was not his position on the paper, and no one connected with' the transaction could have regarded his relation to it as being anything other than that of a simple indorsee and indorser. The request of the bill was that the drawers should accept and pay it, and charge the amount to Dameron Brothers alone, and not to them jointly with the defendant.
The petition shows no cause of action, and the judgment must be affirmed.
