Leitner v. Miller

Teippe, Judge. 1. The note was executed in March, 1866, payable to Sarah A. Leitner, or bearer.' It was indorsed in blank by S. A. Leitner. Both maker and indorser were sued, but the action was dismissed as to the indorser. If she was not legally competent to make the indorsement, then plaintiff’s right of action as bearer was good, so far as the facts of the case show. It was not proven that the plaintiff knew that the payee was the wife of the maker, nor was it so pleaded, nor even that he knew she was a married woman, or that he knew the note was made for accommodation. Moreover, it appears that he was the holder of the note before its maturity. If there was any defect as to the character in which the plaintiff sued, to-wit: as indorsee, instead of bearer, it did not go to the merits, was amendable on motion and cured by the verdict. 2. Although the plaintiff’s name was on the back of the note, the presumption is that an indorsement was not perfected by delivery, or that if it was, he had taken it up and was again the legal holder. No right was claimed for the defendant below as to any equity or legal claim, growing out of the fact that the title was not in the plaintiff, and was in some other person. Judgment affirmed.