Anderson v. Milburn Wagon Co.

McMEANS, J. The Milburn Wagon Company brought this suit against J. E. Anderson, Ed. L. Evans, and R. H. Evans, composing the firm of Anderson, Evans & Evans, to recover upon a promissory note alleged to have been executed to the plaintiff by said firm, and for interest and attorney’s fees stipulated for in said note. Defendants answered by general demurrer and general denial. The case was tried by the court without a jury and resulted in a judgment for plaintiff from which the defendants have appealed. There is no merit in the first assignment of error which complains of the refusal of the court to sustain defendant’s general demurrer, and the assignment is overruled without further comment. [1] By their second assignment appellants contend that the court erred in rendering judgment in favor of plaintiff for the reason that the evidence did not show that the plaintiff is the owner and holder of the note sued on or has any interest therein, but that on the contrary the evidence affirmatively shows that the plaintiff is not the owner and holder of the said note and that it has no interest therein. The only evidence introduced was the note itself, and it is signed by the defendants and payable to plaintiff. Across its face was written, “Protested for nonpayment Feby. 4, 1910,” and indorsed on the back as follows: “Pay to the order of Second National Bank, Toledo, Ohio. Milburn Wagon Company, Frank Ilafer, Treas.” “Pay to the order of the bank or banker presenting this item all prior indorsements guaranteed, Jan. 21, 1910. Second National Bank, Toledo, Ohio, W. C. Carr, Cashier.” In Texas Land & Cattle Company v. Carroll, 63 Tex. 53, it appears that the instrument sued on by the plaintiffs, who were the payees, had been transferred by them, and when introduced in evidence it still bore the indorsement by which it was transferred, *604 and on this account it was objected to. On this point our Supreme Court said: “If nothing further than the indorsement had appeared, the presumption would be, when the paper was found in the hands of the payees, that the transfer had not been completed by delivery; that it had been returned to them as their own property, or that it had been transferred only for collection, and in such cases the right of the payee, even of a negotiable instrument, to strike out the indorsement is clear. Dugan v. United States, 3 Wheat. 172 [4 L. Ed. 302]; Dollfus v. Frosch, 1 Denio (N. Y.) 367; Caldwell v. Evans, 5 Bush (Ky.) 380 [96 Am. Dec. 358]; Building Association v. Weber, 34 Md. 669; Beeson v. Lippman, 52 Ala. 276; Pitts v. Keyser, 1 Stew. (Ala.) 154; Best v. Bank, 76 Ill. 609; Daniel on Neg. Inst. 1198. * [2] In the case cited, objection was made to the introduction of the instrument in evidence because of the indorsement of transfer, and the plaintiffs were permitted to strike out such indorsement. In this case no such objection was made, and we apprehend that, had it been, the plaintiffs would have stricken out the indorsement as they clearly had the right to do under the authority of the case cited. Our opinion is that the assignment is not well taken, and this conclusion is sustained by the following additional cases: Garrett v. Findlater, 21 Tex. Civ. App. 635, 53 S. W. 839; Johnson v. Mitchell, 50 Tex. 212, 32 Am. Rep. 602; Grant v. Ennis, 5 Tex. Civ. App. 44, 23 S. W. 998; House v. Security Mortgage & Trust Co., 38 S. W. 227. In House v. Security Company, supra, it is held that the fact that a negotiable note still in the hands of a payee bears an in-dorsement to another does not even raise a presumption against the title of such holder. We find no reversible error in the record, and the judgment of the court below is affirmed. Affirmed.