Booker v. Stinchfield , 47 Me. 340 ( 1860 )

The opinion of the Court was drawn up by

May, J.

In the original action, Sarah Towns against the present plaintiff, the then plaintiff was ordered, at the Nisi Prius March Term of this Court, A. D., 1856, to furnish an indorser to her writ by the first of July then next, and, upon failure to do so, she was to become nonsuit at the next term. No reason is stated upon the docket for the making of the order, but, in the absence of any proof to the contrary, this Court will presume that the presiding Judge had legal cause therefor. The present defendant was the attorney of the plaintiff in that suit, and all the facts necessary to charge him as indorser of that writ appear in the present case, provided said writ was properly indorsed by him, or by his authority.

The defendant’s name was seasonably placed upon the writ' by the clerk of the Court; but his authority to place it there is now denied. The defendant’s letter of June 27, 1856, does not seem to contain any such authority; but he must have well known that such indorsement had been made, and that the defendant in that suit, instead of moving for a nonsuit in pursuance of the previous order, was relying upon tbe faith of it. Neither the genuineness of his signature, nor the authority of the clerk in making it, appear to have been questioned or denied by the defendant, until after the termination of the suit. The defendant, under such circumstances, must be held to have ratified or adopted the indorsement as his own. The rule of law which will not permit a party, who stands by in silence, and sees another acting to his injury, under the belief that his signature to any instrument is binding, afterward to repudiate such signature, is a sound one; "and, upon the facts in this case, we think the defendant is estopped to deny the validity of the indorsement upon the original writ. Forsyth v. Day & al., 41 Maine, 382, and same case, 46 Maine, 176. The plaintiff, therefore, is entitled to recover in this suit all the costs which were recovered by him against the plaintiff in the former action, with interest from the time of such judgment. Defendant defaulted.

Tenney, C. J., and Bice, Appleton, Cutting, and Goodenow, JJ., concurred.