Woodman v. Boothby , 1876 Me. LEXIS 161 ( 1876 )

Appleton, C. J.

This is an action upon a promissory note payable to W. W. Hideout & Co. or order on four months, signed by W. W. Hideout and given for the sum of two hundred seventy-five dollars. Upon the back of this note, the defendant, before its delivery to the payees, placed his name: and by so doing became a joint promisor with said Rideout. The law is well settled that when one not otherwise a party to a note puts his name upon the back at the request of the maker and before its delivery to the payee, he thereby becomes promisor. Malbon v. Southard, 36 Maine, 147. Lowell v. Gage, 38 Maine, 35. Martin v. Boyd, 11 N. H. 385. Austin v. Boyd, 24 Pick. 64.

The note being delivered to the payees was negotiated by them at a bank in Waterville; it not having been paid at maturity, they, as indorsers, were obliged to take it up, which they did and then passed it by delivery to the present plaintiff.

The bank at which the note was negotiated before its maturity acquired a good title and could have enforced its collection. It mattered not that the defendant was an accommodation signer. Can the present plaintiff maintain this suit l

It is objected that the note was given to a firm of which the maker Rideout was a member. It is obvious that an action could not be maintained upon the note by the payees; for the promisees could not sue one of their number as a maker. But this affects the remedy, not the right; and when the note is duly indorsed to a third person, he acquires a legal title and may sue upon it in his own name. Davis v. Briggs, 39 Maine, 304. Pitcher v. Barrows, 17 Pick. 361. Thayer v. Buffum, 11 Met. 398.

A firm is to be regarded as a distinct personality. The firm has its estates and its liabilities separate from that of its several members. The firm may give notes to the members composing it. The members may give their notes to the firm of which they are constituent parts.

The defendant being a co-promisor and not an indorser, his liability was original and not dependent upon demand and notice as an indorser. The payees having taken up the note after its dishonor were holders for value and could transfer a good title. It is immaterial to the defendant to whom he pays what he has promised to pay. It is sufficient for him that the payment will discharge his liability.

But it is further urged that the note was given for the accommodation of the firm to which it was made payable and that the defendant having signed it for their benefit, the moment it was paid with their money it had performed the purpose for which it was given and that it could not be enforced against the maker who was a mere surety. But we think the facts were otherwise— that the maker Kideout was indebted to the firm ; that the note was given to discharge such indebtedness; that the defendant signed for the accommodation of Kideout and not for the accommodation of the firm, and, consequently, that his liability is not discharged. Defendant defaulted.

Walton, Daneorth, Virgin, Peters and Libbey, JJ., concurred.