37 Neb. 872 | Neb. | 1893
This action was brought in the court below by the First •> National Bank of Cambridge City, Indiana, against the plaintiffs in error and one Cora H. Sloman as makers, and the Bank of Omaha as indorser, of a promissory note, of which the following is a copy:
“$2,500.00. Omaha, Neb., Feb. 15, 1889. '
“ Ninety days after date, we, or either of us, promise to pay to the Bank of Omaha, or order, twenty-five hundred and fww dollars, for value received, payable at the Bank of Omaha, Omaha, Neb., with interest at the rate of ten per cent per annum from maturity until paid.
“ C. H. Sloman.”
Plaintiff replied by a general denial.
Upon the trial the jury, under the instructions of the court, returned a verdict in favor of the plaintiff, and against all the defendants for the full amount of the note and interest. Separate motions for a new trial were filed by plaintiffs in error and Cora A. Sloman, which were overruled, and judgment entered on the verdict.
The question to be considered by this court is this: Were plaintiffs in error liable as makers of said note, or were they chargeable as accommodation indorsers, merely? If the obligation they assumed by indorsing their names
Several courts of high standing sustain the doctrine for which plaintiffs in error contend, namely, that, where a stranger writes his name across the back of a note before its delivery to the payee, he is liable thereon as an indorser. (Moore v. Cross, 19 N. Y., 227; Phelps v. Vischer, 50 Id., 69; Slack v. Kirk, 67 Pa. St., 380; Clouston v. Barbiere, 4 Sneed [Tenn.], 336; Jennings v. Thomas, 13 Smedes & M. [Miss.], 617; Jones v. Goodwin, 39 Cal., 493.)
There is another line of decisions which hold that a person so indorsing a note is chargeable, prima facie, as a grantor. (Webster v. Cobb, 17 Ill., 459; Blatchford v. Miltiken, 35 Ill., 434; Lowell v. Gage, 38 Me., 36; Sturtevant v. Randall, 53 Id., 154; Cook v. Southwick, 9 Tex., 615; Killian v. Ashley, 24 Ark., 511.)
The decided weight of authority supports the rule adopted by the trial court in this case, and that is that plaintiffs in error are liable as joint makers. (Story, Promissory Notes, secs. 468, 469; Good v. Martin, 95 U. S., 90; First Nat. Bank of Worcester v. Lock-Stitch Fence Co., 24 Fed. Rep., 221; Bendey v. Townsend, 3 Sup. Ct. Rep., 482; Chaddock v. Vanness, 35 N. J. Law, 517; Quin v. Sterne, 26 Ga., 223; Sylvester v. Downer, 20 Vt., 355; National Bank v. Dorset Marble Co., 17 Atl. Rep. [Vt.], 42; Robinson v. Bartlett, 11 Minn., 410; Peckham v. Gilman, 7 Id., 446; Schmidt v. Schmaelter, 45 Mo., 502;
■ In Bright v. Carpenter, supra, Lane, C. J., observes: “If a person, not a party, give his name to a note already existing, his engagement is collateral only, and he is to be held as guarantor; but if such a person sign his name to such a paper at the time of its execution, without prescribing the limits of his responsibility, he authorizes the holder to treat him as a maker, and is as much bound as if his name was written under that of the principal.”
' Judge Story, in discussing the question in his valuable work on Promissory Notes at section 469, says: “The prinbiple upon which all these cases turn is the same; and that is, to expound the particular transaction, without reference to the form which it has assumed, in such a manner as will best carry into effect the substantial intention of the parties, ut res magis valeat quam pereat, rather than by a close or technical interpretation, adhering to the letter, to defeat the very objects and purposes for which alone the transaction must have taken place, and thus to make it operate at once as a delusion and a fraud upon the ignorant or the unwary. Nor is there anything novel in this mode of interpretation applied to this class of cases. It stands upon the principle that two instruments of the same general nature, both executed at the same time and relating to the same subject-matter, are to be construed together, as forming but one
There is no room for doubt that where a person not a payee places his name upon the back of a note in blank, before it has passed into the hands of the payee, he may be proceeded against as maker, indorser, or guarantor, according to the circumstances of the case and the intention of the parties at the time of the transaction; but as between the original parties, at least, parol evidence is admissible to show the real character of the obligation assumed by him j that is, whether his undertaking was that of a joint maker, guarantor, or indorser. ' We are constrained to adopt the rule sustained by the current of authorities, and the one which is in harmony with the decisions of the supreme court of the United States, namely, that when a third perSQn indorses his name upon a note in blank at the time it is executed, and before delivery, the law presumes, in the absence of evidence showing the nature of his undertaking, that he intended to ^assume the liability of an original promisor. Applying this rule to the case at bar it will be presumed tjiat the plaintiffs in error, by placing their names upon the back of the paper in suit, intended to incur the liability of a maker.
We do not think that the trial court erred in not permitting plaintiffs in error to show the intent with which they backed the note in controversy. The answer was not sufficient to admit of such proof. Besides, plaintiff below
Cora H. Sloman filed a separate petition in error in the case in this court, but having failed to favor us either with a brief or oral argument upon her assignments of error, and no error appearing upon the record prejudicial to her fights, her petition .in error is overruled. The judgment of the district court is
Affirmed.