Durgin v. Bartol

Dickerson, J. The judge of the superior court ruled pro forma, that this action is maintainable in the name of the plaintiffs without indorsement, though the note is payable to their order, and the defendant excepted to this ruling. It is familiar law that an action on a note payable to A. B., or [474] order, cannot be maintained in tbe name of C. D., unless it is indorsed by A. B. So, in general, an action cannot be maintained upon a note or bill payable to tbe order of the maker or drawer until it is indorsed. Smalley v. Wright, 44 Maine, 445; Foster v. Shattuck, 2 N. H., 446. The. reason for the rule in the latter case is that the contract is not complete until the note is indorsed by the maker; it can only become a complete contract by being negotiated. But no such reason obtains in the case at bar. The plaintiffs became the owners of the note upon its delivery, with the right to enforce payment thereof without negotiating it. The law does not. require the meaningless formality of making such a note payable to the plaintiffs by their own indorsement thereon. In contemplation of law,, the contract of the parties, as between themselves, means the same without as with such indorsement: a note payable to the order of A. B., is a. note payable to A. R., or order. Howard v. Palmer, page 86, ante. Huling v. Hogg, 1 Watts & Serg., 418; Story on Promissory Notes, § 36. Exceptions overruled. Appleton, C. J\, Walton, Barrows, Virgin and Peters, JJ., concurred.