Blethen v. Lovering , 58 Me. 437 ( 1870 )

Appleton, C. J.

The defendant, on or about its maturity, indorsed to the plaintiff, “ without recourse,” a note signed by one Charles Durnin, for $35, dated June 11, 1855, and payable in one year. On the note the plaintiff brought a suit, which was referred, and the referee made a report in favor of said Durnin, which was accepted at the February term, 1865, of this court, for Aroostook county, and judgment rendered thereon.

On the 14th September, 1866, the plaintiffs brought this action on the ground of an implied promise or warranty, on the part of the defendant, at the time of the transfer, that the amount purporting to be due was due, when, in truth, nothing was due, the note having been given without consideration.

If the note was without consideration, the plaintiff claims that the defendant, notwithstanding his special indorsement, would be liable within the principle of the Ticonic Bank v. Smiley, 27 Maine, 225. If it be so, his liability, whatever it was, accrued at the time of his indorsement and not since. If there was a promise or a warranty it was according to the statement of facts, broken as soon as made. So an indorsement of a negotiable paper is a warranty, by him who makes it, to every subsequent holder in good faith, that the instrument itself and all the signatures antecedent to such indorsement are genuine ; and' where the signatures are forgeries, the indorser is at once liable upon his warranty to such subsequent holder, without any presentment for payment or notice of non-payment. Turnbull v. Boyer, 40 N. Y. 456. The liability of the defendant accruing, then, at the time of his indorsement, the statute of limitation constitutes a bar.

The plaintiff seeks to avoid this by It. S., c. 81, § 107, which extends the limitation in cases of fraudulent concealment of the cause of action. But neither the writ nor the report of the evidence sets forth any such fact or any offer to prove such fact.

Plaintiff nonsuit:

Cutting, Kent, Walton, Dickerson, Danforth, and Tapley, JJ., concurred.