Stein v. Passmore, 25 Minn. 256

Stein v. Passmore

25 Minn. 256 | Minn. | 1878

Cornell, J.

It is settled law in this state that a party, other than the payee named in a promissory note, who puts his name on the back of the instrument before it has a legal existence by delivery, for the purpose of giving it credit with the payee, becomes thereby a joint maker of the note, and liable as such. Pierse v. Irvine, 1 Minn. 272 (369;) McComb v. Thompson, 2 Minn. 114 (139;) Marienthal v. Taylor, 2 Minn. 123 (147;) Robinson v. Bartlett, 11 Minn. 302 (410.)

The complaint in this ease alleges “that on the fourth day of February, 1874, the defendant Wm. A. Passmore made and executed his certain promissory note, in words and figures following, to wit:

Stillwater, Minn., February 4, 1874.

One day after date, for value received, I promise to pay to W. J. Stein or order, the sum of five hundred and fifty-six 70/100 dollars, with interest at ten per cent, per annum from date.

William A. Passmore.

“That before the same was accepted by the plaintiff, the payee therein named, and on or about the sixteenth day of March, 1874, the said defendant John W. Passmore, for the purpose of making said note good, and giving the same credit, signed the said note as maker thereof, by then and there writing his name on the back thereof, with the date, in words and figures as follows, viz.: ‘March 16, 1874, J. W. Pass-more,’ and then and there delivered the same to plaintiff, the said payee,” etc. To this complaint the defendant J. W. *258Passmore demurred., on the ground that the facts therein staled did not constitute a cause of action as against him. The particular grounds which were urged upon the argument are that the allegation that the note was made and executed by the defendant Wm. J. Passmore, at the time it bore date, imports a delivery of the note to the payee at that time; and as the defendant John W. did not endorse the same till some time thereafter, the case is not brought within the doctrine of the eases above cited. The question presented for determination, therefore, is one of pleading.

The averment as to the making and execution of the note by Wm. J. Passmore is qualified by the allegations coupled therewith, that before it was accepted by the payee plaintiff, .the said defendant John W. Passmore endorsed the same in the manner stated, as maker, and for the purpose of making it good and giving it credit, and that thereupon the same was delivered to the plaintiff. Construing these allegations together, the reasonable inference and conclusion therefrom is that the payee never in fact received or held the note as owner prior to the alleged endorsement, and its delivery to him thereafter. Prior to this, the note had no legal inception or existence as a valid and binding contract, for this could only occur upon its delivery in fact to the payee as the lawful owner. When so delivered, it became a completed contract from that time, according to its terms, and with reference to its date, to which, the parties thereto must look for the purpose of ascertaining their respective rights and obligations under it. Powell v. Waters, 8 Cow. 687, 705; see also Brewster v. McCardell, 8 Wend. 478; Samson v. Thornton, 3 Met. 275.

The demurrer was rightly overruled, and the order appealed :from is affirmed.