Dusenbury v. Albright ( 1891 )

Maxwell, J.

The defendant in error brought an action against the plaintiff in error, and alleged in his petition that “on the 27th day of February, 1882, said defendant, with others, made their promissory note in writing of that date in the words and figures following, to-wit:

“'$125.50. February 27, 1882.

“ 'Ten months after date, for value received, we promise to pay to the bearer one hundred and twenty-five and dollars, with interest at ten per cent, at Joy, Eckman & David’s Bank, Pawnee City, Nebraska.

'"C. Dusenbury. Henry McDowell.

‘"B. F. McDowell.’

and then and there delivered said promissory note to one W. B. Jones for value received.

“That before the commencement of this action the plaintiff, for a valuable consideration, became the owner of said note, and is entitled to receive the money therein promised. No part of said note has been paid, except the sum of fifty-five dollars paid on the 26th day of December, 1882, and there is now due from the defendant to the plaintiff thereon the sum of eighty and t9^j- dollars, with interest thereon at ten per cent from the 26th day of December, 1882, for which amount, with costs of suit, plaintiff prays judgment.”

The defendant below in his answer first denies each and every allegation contained in the petition; second, states “that said alleged note, referred to by plaintiff in his said petition, was given by said Henry McDowell and B. F. McDowell, and by them alone, and was by them only signed at the time of the date thereof, or at any other time, as makers; that said so-called note was executed and delivered by Henry McDowell and B. F. McDowell to the defendant, the consideration of which was certain property purchased by said McDowells from this defendant at a public sale of property belonging to this defendant, said sale being made on or about the 27th day of February, 1882, said property so as aforesaid by said McDowells purchased was the property of this defendant; that after-wards this defendant sold said so-called note to one W. B. Jones, and indorsed the same as follows: ‘ C. Dusenbury/ and that after and long after said so-called note had become due, said W. B. Jones transferred said so-called note to the plaintiff herein, who at the time of said transfer to him well knew that said so-called note was past due.”

The plaintiff below in his reply, first, denies the allegations of the answer, and, second, alleges that he purchased the note without notice of any claim of the defendant below that he was not a maker of the note.

On the trial of the cause the jury returned a verdict in favor of the plaintiff below for the full amount of the note less $55, which had been paid by McDowell.

The testimony tends to show that in 1882 Henry McDowell and B. E. McDowell purchased certain property of the plaintiff in error at a public sale and gave their note there for for the sum of $125.50, due ten months after date, with interest at ten per cent. About two months after the execution of the note the plaintiff in error sold the same to one Jones at a discount of five per cent and accrued interest, and that Jones required him to sign the note. The plaintiff in error in his testimony says in effect that the reason he did not sign immediately under the names of the McDowells was because there was not room on the paper, hence he signed immediately to the left of those names. The plaintiff in error evidently, from his own testimony, did not regard himself as an indorser on the note, and if the testimony of Jones is to be believed he regarded his liability as still continuing. About two years after Jones had obtained the note he transferred the same to the plaintiff below, who evidently supposed that the defendant below was one of the makers of the note. There was nothing on the face of the note to apprise him who was the payee. The note was payable to bearer, and therefore negotiable, without indorsement, hence the legal title would pass by a mere transfer of the instrument.

There is some testimony in the record tending to show that one of the McDowells had moved away before the bringing of this action and that the other was not in a situation financially to pay the debt. Whether the Mc-Dowells were financially able to pay the note when it was given does not appear, but the fact that Jones required the plaintiff in error to sign the same as joint maker leads us to infer that that matter was in doubt. It is very evident from all the testimony that the plaintiff in error signed the note as joint maker and that he is liable thereon.

A case very similar to this was before the supreme court court of Michigan in Cook v. Brown, 29 N. W. Rep., 46, where numerous cases bearing upon this question are cited.

The judgment of the district court is right and is

Affirmed.

The other judges concur.