Chandler v. Westfall , 30 Tex. 475 ( 1867 )

Caldwell, J.

This suit was brought by appellee to the fall term of the district court, 1865, on the following promissory note:

“ [$125.] One day after date I promise to pay John T. Miller, or bearer, one hundred and twenty-five dollars and fifty cents, with ten per cent, interest until paid, for value received. G-eorqe Flournoy.”

Which is indorsed in blank on the back by “F. W. Chandler.”

Judgment was rendered in the court below against both defendants, from which Chandler alone appeals.

We have not been furnished with a brief or oral argument by the appellee. It is submitted on his part upon a suggestion of delay, asking an affirmance with damages.

What was the character of the liability assupied by appellant, Chandler? A blank indorsement by another than the payee is held responsible as guarantor. (21 Pick., 142.) Such indorser thereby gives to the holder an implied power to write over his name the most absolute terms of guaranty. (27 Pick., 446.) Yet it may be shown by appropriate averments and proof that the obligation intended to be assumed was of another character. (9 Tex., 615.) From this it seems that the holder of such promissory note thus indorsed may pursue the indorser in any manner he may elect, not incompatible with the original undertaking. .

Looking therefore into the appellee’s petition, we find that he became possessed of said note thus indorsed January 1,1863, in due course of trade, nearly two years after its maturity. Thus, by a well-known rule of pleading, construing appellee’s allegations most strongly against him, we fix the date of Chandler’s indorsement, and the manner in which appellee elects to hold him liable, and this, too, upon principle, for Chandler could only look to the pleadings to prepare his defense. If appellee had charged him as guarantor, or in any other character than indorser, as well he could, it would have presented an issuable fact, enabling Chandler, by competent proof, to have negatived and thereby avoid the action. Not having done so, appellee must be held strictly to his own pleadings, which charges appellant as indorser 1st January, 1863.

Is Chandler liable as indorser? To hold an indorser liable, suit must be brought to the first, or at most to the second, term of the district court, and cause shown for not bringing it to the first term. (Paschal’s Dig., Art. 229.)

The same rule prevails even though the note is indorsed long after maturity. (3 Wend., 79.) Demand must be made in a reasonable time, which under our statute may be by suit. (9 Johns., 121.)

It is insisted, however, that section 6, ordinance 11, convention of 1866, suspends the statute requiring suit to be instituted'to charge the indorser. To this we reply, that article 229 of Paschal’s Digest is not a statute of limitation, and cannot be affected by the ordinance in question, as held in Ryan v. Flint & Chamberlin, determined at the present term of this court. {Ante, 382; McClelland v. Slauter, post, 497.]

Upon the whole, we are of opinion that Chandler is not liable. The judgment of the court below is reversed and dismissed as to Chandler.

Beversed and dismissed.