Mendenhall v. . Davis , 72 N.C. 150 ( 1875 )

The defendant offered to prove that at the time when he wrote his name on the back of the note of Thom and others and delivered the same to the plaintiff, it was understood and agreed between them, that such indorsement should have no other effect than to assign the property in the note to the plaintiff, and to guaranty him against its confiscation by the United States. His Honor, the Judge below, excluded the evidence, on the ground that parol evidence was inadmissible to alter or explain a written instrument.

The rule upon which his Honor acted is unquestionable; but we think he was mistaken in its application, and that both on reason and authority the evidence was admissible. No action can be maintained upon a mere signature of a name without a reference to some written contract which it was intended to authenticate, except on the supposition that there is written out what the signature authorized to be written out as authenticated by it. What that is which is so authorized to be written out is sometimes matter of law and sometimes a question of fact as to what authority the signature was intended to convey. When the payee or regular endorsee of a negotiable note writes his name on the back of it as between him and a subsequent bonafide holder for value, the law implies that he intended to assume the well known liabilities of an indorser, and he will not be permitted to contradict the implication; so if the drawee in a bill of exchange writes his name across the face of it without more, the law authorizes such a holder to write above the signature the contract which it implies under the circumstances, and such contract being in writing by authority of the signer, cannot be altered or explained by parol.

But this rule does not apply between the original parties to a contract which is not in writing, although there be the signature of one or more parties to authenticate that some contract was made. In such cases it must always be a question of fact what contract the signature authorizes to be written above it; in other words, what was the agreement of the parties at the time it was written.

There is no written contract to be altered; the whole (except the signature which by itself does not make a contract, ) exists in parol, and must be established by such proof. It may be admitted, and the authorities seem that way, that when a person, other than the payee or endorsee of a note, writes his name across the back of it, after it has been delivered by the maker, and not as a part of the original transaction, and delivers it for value to another, the law presumes that he intended to become a guarantor of the note. But this presumption is not one of law, but of fact merely, and may be rebutted. In Love v. Wall, 1 Hawks, 313, a second indorser of a promissory note was allowed in defence of an action brought against him by the first indorser, to prove an agreement different from what the law presumes from the order of their names on the back of the instrument, and that in fact they were jointly liable as sureties for the maker. In Gomez v. Lazarus, 1 Dev. Eq., 205, it was taken as clear, that the acceptor of a bill of exchange, as between him and an endorser, might prove that they were joint sureties for the drawer. In Davis v. Morgan,64 N.C. 570, the payee of a note who had written his name in blank across the back, was permitted to prove that such signature was not intended as an indorsement, but as a receipt of payment from the maker. In Sylvester v.Downer, 20 Vt. 855, the Court held that by an indorsement in blank the defendant became presumptively bound as a joint promisor. But REDFIELD, J., adds: "But the signature being blank, he may undoubtedly show that he was not understood to assume any such obligation." See to the same effect, Clapp v. Rice, 13 Gray, 403; see alsoPerkins v. Catlin, 11 Conn. 213, and numerous other cases cited in a note on page 121, of 2 Parsons on Notes and Bills.

PER CURIAM. Venire de novo.