Mitchell v. McHenry , 62 Iowa 352 ( 1883 )

Adams, J.

The note was executed October 20, 1868. In February, 1869, one of the defendants, Morris McHenry, made a writing upon the back of the note in these words: “ It is understood and agreed that $200 of this note are to be paid in 1869, and $100'in each year thereafter.

“ Signed, Morris McHenry.”

All the defendants, including those who did not sign this writing, now set up tbe same as being binding upon all, and causing tbe note to so mature, (exceptas to $100,) as that tbe same (except as to $100) is now barred by tbe statute of limitations. Tbe defendants other than McHenry seek to connect themselves with tbe writing by an averment in their answer in these words: “He (McHenry) executed said agreement with tbe knowledge and consent of all tbe defendants in this action.” Tbe plaintiff filed a reply, admitting that Mc-Henry made the written agreement set out, and that tbe other defendants knew of bis making it, and consented to it; but denied that tbe agreement is tbe contract of any of tbe defendants except McHenry. Upon tbe issues thus made, the case was submitted without evidence, and tbe court gave an instraction in these words: “lam of tbe opinion that tbe legal effect of the writing on tbe back of tbe note (tbe same being there as admitted with tbe knowledge and consent of the defendants) was to modify tbe contract as to the time-when the money contracted to be paid was to be paid.” The-court further instructed, in substance, that two of the defendants were liable for only $100 and interest, and that tbe other' two were liable only for that amount, unless the jury should find that tbe latter bad revived their liability by a promise in writing. Tbe ruling of tbe court is assigned as error.

If this indorsement bad been written upon tbe note at the-time it was executed, it might perhaps be taken as a part of tbe original contract, and all tbe .signers of tbe note be taken as parties to it, because a part of tbe original contract. But tbe indorsement was made several months after tbe execution of tbe note. If tbe defendants other than McHenry became-parties to it, they did so by reason of tbe fact admitted in tbe plaintiff’s reply, that they knew of McHenry’s making tbe writing, and consented to bis making tbe same.

Tbe agreement, as it appears in writing, is of course tbe agreement only of McHenry. It does not even show that there was an intention that it should be signed by any one but him. Tbe most that can be said is that, so far as the body of it is concerned, it might have been drawn with the intention that it should be signed by the others. But, whatever we might think of it in this respect, we do not think the instruction can be sustained. The consent admitted by the reply, it appears to us, did not go further than that Mc-Henry should do what he did, and that is, make the indorsement precisely as it appears; and that, as we have seen, construed by its own terms, cannot bind any one but McHenry. It is true that McHenry did not need the others’ consent to enable him to make such indorsement; but we can conceive that that was all that lie asked, and all that they gave, and that they gave it for the reason that they did not regard themselves as affected by it.

Besides, it appears to us that, where a person has nothing to do with a writing except to verbally consent to it, he cannot be regarded as making himself a party to it. His verbal consent might amount to an agreement, but it would be a verbal agreement, and not a written one. It may be that the defendants other than McHenry made a verbal agreement, but they do not so aver, nor does the instruction proceed upon such theory. In our opinion the judgment must be

Reversed.