Hooks v. Anderson , 58 Ala. 238 ( 1877 )

MANNING, J.

The note, on which this suit was brought, is negotiable and payable in bank — -what is called commercial paper. It is made payable to appellee, (the plaintiff below), and was delivered to her with the name of the maker, Turner,, at the end of it, in the proper place, and that of Hooks indorsed on the back; and these two persons were sued together as joint makers. Judgment by default was taken against Turner, and upon issue made by Hooks, judgment was rendered against him. No demand of payment of the note was made at its maturity and notice of non-payment given to Hooks ; nor is there any excuse shown for not having done so. The only question is, whether or not, he was liable in this action and upon this state of facts.

. The rule of decision in such cases in this State, was established many years ago. In Jordan v. Garnett (3 Ala. 610) the defendant’s name was written on the back of an ordinary note, not commercial, when it was delivered to the payee. ORMOND, J., said, that defendant intended to bind himself as maker of the note, could not be supposed, for if he had he would have written his name at the bottom of the note. Neither was it a fair inference that the indorsement was intended as a mere guaranty that the note would be paid at maturity ; for such would not have been the effect of a regular assignment of the paper; and in the absence of proof it could not be presumed that the parties contemplated a greater liability than would be created by a regular assignment if the title had been in the assignor. The assignor of such a note would be liable, under the statute, for the amount of the note, only in the event a suit against the maker should be brought to the first term of court to which it could be brought after the maturity of the note. And it was, therefore, held that the undertaking of the defendant was an affirmation or warranty that the note, when due, could be collected, by due diligence, from the maker; and that, if no valid excuse existed, the maker must be sued to the first court after the maturity of the note, or the indorser would not be liable.

The same question arose upon a like irregular indorsement of commercial paper like the present, (a note negotiable and payable at the bank) by a defendant, to whom it had not been indorsed by the payee, in Milton v. De Yampert, (3 Ala. 648). Judge Henby Goldthwaite, speaking of the case of Jordan v. Garnett, supra, said: “We held that one who placed his name on an assignable, as distinguished from a negotiable, security, was not to be presumed to take upon himself a greater liability by such a blank signature, as is here shown, than he would have incurred by a regular indorsement. The same rule must be applied to this case, but the legal result is somewhat different, and this arises from the fact, that in this case, the note is negotiable and payable in bank.” That able judge then argued that, as such an irregular indorsement is connected with and dependent upon the note or writing upon which it is made, it must import a liability ranging according to .the nature of such note, and “that the liabilities of imperfect indorsements must be referred to and deduced from the securities on which they are found.” And hence, he concluded that the imperfect indorsement must be governed by similar rules to those applicable to perfect indorsements, and that in the absence of any excuse, a similar degree of diligence is necessary to charge one who becomes bound by an imperfect indorsement, as is necessary to charge an actual indorser.”

In the course of the investigation, alluding to the diversity in the decisions of similar cases in other States, Judge Goldthwaite said: “In such a condition of adjudication, we are thrown upon principles, and it is evident that we must get our answer from the paper itself.” And after-wards, when he had enunciated the rule above stated, he says : “We have not been able to perceive that any other general rule can be deduced from elementary principles, capable of covering all cases in which imperfect indorse-ments may be made.”

This decision has ever since been considered as establishing the law in such a case, and it is so referred to by WaleeR, 0. J., in Price v. Lavender, 38 Ala. 389. He says: “Whatever may be the law in other countries, the law is settled in this State with respect to such indorsements, that, unexplained, they impose a liability in favor of the person to whom the indorsement is made against the indorser, which is strictly analagous to the liability upon a regular indorsement.”

These decisions constrain us to say that the judge of the Circuit Court erred in his ruling.

Let the judgment below be reversed, and the cause be remanded.