Parker v. Tuttle , 41 Me. 349 ( 1856 )

Tenney, C. J.

Evidence was introduced tending to show that the name of the payee was not indorsed by him on the note on the day of its date. The jury were instructed, that, as the indorsement was thereon at the time of the trial, the presumption was, in the absence .of proof to the contrary, it was made before the institution of the suit, if they were satisfied that it was not made on the day of its date.

A note purporting to have the indorsement of the name 'of the payee, with no indication of any time when it was made, independent of the date of the note, is presumed to have been indorsed on that day, because that date will apply to every thing written upon the same paper. If the indorsement is proved not to have been made so early as' that day, the basis of this presumption is removed; and, in order to recover, the holder must show, not only that the indorsement is that of the payee, but that it was made before the suit upon the note was commenced. The case of Hutchinson v. Moody, 18 Maine, 393, sustains this principle.

The defendant’s letter to Strickland is a request that he would purchase of the agent of the city of Portland a barrel of rum, and not that he should sell it himself. The rum was received by the defendant, and it was a question of fact under all the evidence upon that point, whether it was purchased by Strickland, or sold by him. If the purchase was made of the city agency of Portland, it was an exact compliance with the authority of the letter. If it was purchased by Strickland elsewhere for the defendant, in consequence of the request in the letter, and was so received, it might be treated as a ratification of the act of Strickland as the agent. The bill has a tendency to show that the purchase was made of Strickland, but it is not conclusive. The instructions were given as applicable to a state of facts, which the jury might find to be true, that the rum was purchased by Strickland as the agent of the defendant, and they are not regarded as erroneous.

Exceptions sustained. — Verdict set aside, and New trial granted.

Rice, Appleton, Cutting and Mat, J. J., concurred. Goodenow, J., did not sit.