Owings v. Baker , 54 Md. 82 ( 1880 )

Miller, J.,

delivered the opinion of the Court.

The appellee is sued by the appellant as joint maker, with Rowland R. Hayward, of the following promissory note:

“$200.00. Baltimore Comity, February 16th, 1876.

“ Six months after date I promise to pay to the order of David Owings the sum of two hundred dollars at-with interest.

“Rowland R. Hayward.”

This note was endorsed in blank by Prudence S. O. Baker, the appellee, and the effort of the appellant, Owings, the payee in the note, is to hold her to the obligation of a joint maker or original promisor. The case was tried before the Court without the intervention of a jury. There was no exception to the admissibility of evidence, and with the findings of the Court upon questions of fact, we have nothing to do. Our duty is simply to review the single question of law presented by the rulings rejecting the two instructions asked by the plaintiff, and granting the one asked by the defendant. The prayers of the plaintiff assert, in effect, the proposition that upon the finding of certain facts therein stated, the law fastened the responsibility of a joint maker upon the defendant. On the other hand the defendant’s prayer presents substantially the proposition, that if the Court found from the evidence in the cause, that it was the understanding and agreement of all the parties to the note when Mrs. Baker put her name upon the back of it, that she should occupy the position, and be held to the liability of endorser, then her promise and undertaking was not an original, but a collateral one, and she is not responsible as joint maker. If this instruction be correct, it follows of necessity there was no error in the rejection of the plaintiff’s prayers; and that it is correct, there would seem to be no doubt in view of the decision of this Court in the case of Ives vs. Bosley, 35 Md., 262.

In that case the Court say the facts stated, established by conclusion of law the responsibility of Ives as a joint maker or original promisor, but they further distinctly admit and decide, that the contract entered into by a blank endorsement will receive such a construction as will give effect to the intention of the parties, and that parol evidence will be admitted to show and explain what liabilities were intended to be assumed at the time of the transaction. The doctrine expressly announced in that case is, that if the contract set up is different from that which attaches by presumption of law, it must he. established by proof, showing that both parties, promisor and promisee, so intended and agreed, and that a third party, who places his name on the back of a note before it is endorsed by the payee, can avoid the liability of a joint promisor, which the law, in absence of proof to the contrary, attaches to such an endorsement, by proving a different understanding of all the parties at the time of the transaction. An agreement to such effect between the drawer and a blank endorser alone without the assent of the payee, will not do, because that would open the door to fraud upon the creditor who may have taken the note in the utmost good faith, relying upon the blank endorsement as security for his debt. But where he assents and concurs in the agreement no such result can follow. In such a case both reason and justice require that the intention of the parties should be carried into effect, and that the endorser should not be held to a liability or made to assume a position he never contemplated, and which the party to whom the promise was made agreed he should not be placed in. Now this, as we understand it, is the legal proposition asserted by the defendant’s prayer, and so interpreted, it is in perfect accord with, and sustained by, the decision in Ives vs.Bosley. It follows there was no error in the rulings excepted to, and the judgment must be affirmed.

(Decided 3rd June, 1880.)

Judgment affirmed.