Daily v. Bartholomew , 5 Kan. App. 148 ( 1897 )

Mahan, P. J.

There is no reason in law' why a

party who assigns a note may not become liable as an indorser thereon by the contract of indorsement in the usual form. The contention of the defendant in error is, that this is not an indorsement; and, while he has no brief on file, nor was the case argued in his behalf, we understand his contention to be that the petition does not disclose a contract of indorsement within the meaning of that word, technically speaking. There is no denial of the signatures. The demurrer admits the making of the indorsement as set out in the petition. What is a technical indorsement, within the meaning of the law merchant?

“Indorsing an instrument, in its literal sense, means writing one’s name on the back thereof; and, in its technical sense, it means writing one’s name thereon with intent to incur the liability of a party who warrants payment of the instrument, provided it is duly presented to the principal at maturity, not paid by him, and such fact is duly notified to the indorser.” Daniel on Negotiable Instruments, vol. 1, §666.

The second contract written upon the back of this note fully discloses the intent here specified. The contract contains a waiver of presentation at maturity, or at least a waiver of protest and notice of dishonor.

“An indorsement may be by blank, and is so called when it consists of nothing more than the indorser’s name. . . . By far the most common way of indorsing in actual use is by blank indorsement; this, indeed may be considered the custom, and anything written besides the name may be taken as an exception.” Parsons on Notes and Bills, vol. 2, p. 18.

Had the defendant and plaintiff been content to rest upon the contract of assignment, simply, the case would have come within the rule laid down in Hatch v. Barrett (34 Kan. 223) ; but the fact that the defendant in error, in addition to the contract of assignment, indorsed the note in another place, in the usual form of blank indorsement, with the exception of the words over his signature, “protest waived,” clearly indicates the intention to assume the obligation of an indorser by an indorsement in blank.

The judgment sustaining the demurrer to the petition is reversed, and the case remanded with directions to the court below to overule the demurrer.