McCormack v. Reece ( 1852 )

Opinion by

Greene, J.

This was an action of assumpsit on a subscription paper to pay for certain improvements in Muscatine. The subscribers promised payment to ¥m. McCormack or order. McCormack assigned the paper “ to the bearer,” and the suit was commenced before a justice of the peace, by Henry Eeece, the bearer, against McCormack, the indorser, for twenty dollars, tbe sum placed to tbe name of Geo. Hunt, who did not subscribe or authorize bis name to tbe paper. Plaintiff recovered before tbe justice and also in tbe district court.

1. It appeared on tbe trial that tbe subscription was assigned to Eeece, in part payment for tbe improvement. In tbe instructions to tbe jury, tbe court regarded tbe subscription as a promissory note, and McCormack as indorser, and as guarantor of the genuineness of tbe signatures. To these instructions exceptions were taken, but we can see in them no serious error. It cannot be questioned, that all who subscribed to tbe instrument an amount stated by them, became liable to pay that amount according to tbe stipulations of the subscription paper; nor can it be questioned that tbe improvement contemplated by tbe paper was a sufficient consideration to make tbe promise binding. As McCormack indorsed tbe paper to Eeece, in part payment of tbe improvement for which tbe promises were made, it follows that be was not only liable as indorser, but also as guarantor of tbe genuineness of tbe paper.

S. Wliich&r^ for appellant. J. Soott RioJmcm, for appellee;

2. Eut the bill of exceptions shows that the defendant offered to prove that the work contemplated by the paper was not finished, nor sufficiently well done, and the court sustained the objection to the introduction of this testimony. Was this ruling erroneous? We think not. The paper stipulated the “ promise to pay as the work progresses.” The indorsee was therefore entitled to payment before tbe work was finished or well done.

3, It is objected that the testimony did not show sufficient consideration for the indorsement, nor sufficient to justify the judgment against the-indorser. To this it may be replied that the record does not purport to give all the testimony. It must therefore be presumed that the judgment was justified by the evidence.

Judgment affirmed.