Dale v. Gear

ButleR, C. J. This case comes up again on a demurrer to two additional pleas. We think the first of the new pieas sufficient, but the second insufficient. The first sets forth an agreement between the parties, that if the defendant would sell a certain machine to a certain man and take his note for it, he, the plaintiff, would purchase the note at an agreed discount on the credit of the maker alone; that the sale was made and the note taken pursuant to the agreement, and that it became the duty of the plaintiff to take and pay for the note indorsed by the defendant, “without recourse.” It further sets forth that the plaintiff requested the defendant to indorse it without restriction, to enable him to negotiate and collect it, and promised not to hold him on his indorsement. The antecedent agreement thus alleged created such an equitable relation between the parties in respect to the indorsement without restriction, that the defendant was - ,in effect an accommodation indorser. The defendant therefore, by that plea, brings himself within the rule which permits such a promise to be proved in such an excepted class of cases, as recognized by us when the case was before us on a former occasion. The Court of Common Pleas must therefore' be advised that the first of the new pleas is sufficient, but the second insufficient. In this opinion the other.judges concurred.