Wescott v. Stevens

Haskell, J. Assumpsit by the last indorser of a promissory note, who had paid it at maturity, against a prior indorser. The defense was that plaintiff indorsed the note at the request of and for the accommodation of the maker, and was, therefore, qua the defendant, a joint promisor. The defendant was the payee and had indorsed the note before the plaintiff indorsed it. It is immaterial to inquire for whoso accommodation the plaintiff made hiss contract, but material to know the terms of his contract^',If the maker pi’esented the note, already indorsed by~the payee-, to the plaintiff, with a request to become a party [329] to the note, he had the choice in what capacity to become bound. He might have elected to sign as maker, but did not. In effect, he handed the maker the cash and took the note. That was the result of his contract; and it is very plain that he intended, by his indorsement, to look to the note, as it was when he indorsed it, for his security, otherwise he would have signed in a different capacity. By signing as he did, he accommodated the maker all the same, gave currency to the note, and looked to the note for his security. He became bound as indorser. That was the contract made. Sometimes the order of indorsements may be shown to be different from what they appear to be. Such proof shows what the -writing was when made, therefore what the written contract was. Coolidge v. Wiggin, 62 Maine, 568, is precisely in point. The defendant, as payee, and plaintiff successively indorsed the maker’s note for his accommodation, and, in the absence of an agreement between them to be sureties merely, they were held bound to each other as successive indorsers. There, the indorsements were both at the request of the maker. Here, if plaintiff’s indorsement was at the request of the maker, without any agreement with defendant, whose name was already on the note, a fortiori the defendant should be held to a completed contract, on which plaintiff paid his money. Stevens v. Parsons, 80 Maine, 351; Colburn v. Averill, 30 Maine 310; Dubois v. Mason, 127 Mass. 37 ; Bigelow v. Colton, 13 Gray, 309: Howe v. Merrill, 5 Cush. 80; Smith v. Morrill, 54 Maine, 48 ; Williams v. Smith 48 Maine, 135. Moreover, the weight of evidence is clearly against the contention of the defendant, that plaintiff indorsed at the request of and solely for the accommodation of the maker. That is his account of the transaction ; but the maker and plaintiff squarely deny this. They both say that the indorsement was not procured at the maker’s request, and the plaintiff says that it was made at the defendant’s request. Their account is corroborated by the circumstances. Motion and exceptions sustained. Peters, C. J., Walton, Ltbbey and Foster, JJ., concurred.