Childs v. Wyman

Hathaway, J. Assumpsit on a joint and several promissory note, signed by Richards & Barker and the defendant, payable to A. A. Childs or order, and by him indorsed to the plaintiffs. The defendant signed the note on its back, and wrote under his signature the words “ without recourse.” The law is settled in this state, that the defendant’s signature, on the back of the note, had the same effect to make him an original promisor, as if he had signed on its face, with Richards & Barker, and there being no other date than the date of the note, the presumption is, that he signed it when they did, or agreed to sign it, and subsequently did so, in pursuance of such agreement. The words 11 without recourse” can have no legal effect,, touching the defendant’s liability; they are words applicable to an indorser — not to an original promisor, and are therefore mere surplusage. Lowell v. Gage et als., 38 Maine R., 35. If the defendant intended, by writing those words under his name, to avoid the liability incurred by his signature, that would not avail him. In a case where a note was written thus: “ Borrowed of J. S., ¿£50, which I promise not to pay,” it was rightly held that “ the word not shall be rejected, for a man shall never say, I am a cheat and have defrauded.” Bayley on Bills, 6, and cases cited by the plaintiff’s counsel. The case finds that the defendant did not sign the note till the next day after it was signed by Richards & Barker, and the plaintiff contends that the evidence shows that he did it then, in pursuance of an agreement to do so at its in — 442 — ception, and tbe jury found specially that be was liable as an original promisor. Considering tbe fact that by tbe defendant’s signature to tbe note, tbe presumption is, that be was an original promisor, in connection with tbe evidence in tbe case, we are of opinion that be was not aggrieved by tbe instructions given the jury upon that question. This case does not appear to be essentially distinguishable from Moies v. Bird, 11 Mass. R., 436. See also Sampson v. Thornton, 3 Met. R., 275. Exceptions overruled.