Stinson v. Lee ( 1890 )

Cooper, J.,

delivered the opinion of the court.

The demurrers to the original and amended declarations were properly sustained. Lee was the payee in a promissory note, subscribed by the maker thereof, “ A. G. Cunningham, Ag’t,” nothing appearing on the face of the note indicating for whom he professed to act as agent. After the maturity of the note he indorsed the same to the plaintiffs, who some time thereafter presented the note to S. A. Cunningham, the wife of A. G. Cunningham, and who, the declaration avers, was his principal, “ and demanded payment thereof, and sued out an attachment for rent against her, in order to collect said note, of all of which said Lee had immediate notice.”

The present suit is against S. A. Cunningham as maker and against Lee as indorser of the note.

The liability of Lee rested wholly upon his indorsement, and that liability was to pay the note, if seasonable presentment to the maker should be made and payment refused, and Lee notified thereof.

A. G. Cunningham, and not S. A. Cunningham, was the maker of the note, the word “ agent” following his signature being — in the absence of the name of the principal — merely deseriptio persona. 1 Danl. on Neg. Inst. §§ 303-305. We are not called upon to decide whether, in a proper action, Mrs. 8. A. Cunningham might be made liable on the consideration for which the note was given; nor whether, as between the original parties, A. G. Cunningham was liable on the note. The sole question is whether Lee, who indorsed the note signed by “A. G. Cunningham, Agent,” can be held on his indorsement by virtue of a presentment to one whose name nowhere appears on the note, and we think that he cannot, because such person was not the maker of the note, for whose default only was he bound by his indorsement.

Judgment affirmed.