Clark v. Whiting

Park, C. J. The note in question was endorsed in blank by Leete, the payee, and delivered to the defendant in the usual course of a commercial transaction. Under the indorsement of Leete upon the back of the note, the following words appear, over, and in immediate connection with, the signature of the defendant: — “Received one year’s interest [152] on the within, May 10th, 1871. Gr. K. Whiting.” Does the note purport to have been indorsed by Whiting in the legal sense of that term? We think not. If the defendant had written the words “without recourse,” over and in immediate connection with his signature before delivering the note, no one would claim that he had made a contract of indorsement. The reason is that his signature would be taken in connection with the words preceding it. These words would qualify or explain it. Suppose the defendant had written upon the back of the note a memorandum of some contract he had made with a third person, and the parties to the contract had signed the memorandum; could this make them liable as endorsers of the note if it should afterwards be further negotiated? Disconnect the signatures from the rest of the writing and they would be endorsements. So disconnect the signature from the words “without recourse,” in the case supposed, and the defendant would be liable as an indorser of the note; but if his signature is taken with the words he would not be liable. We think it is clear the entry in question of itself purports merely the acknowledgment of a receipt by the defendant of a sum of money as interest on the note, and in order to make the defendant liable as an indorser the plaintiff must prove by evidence aliunde that the defendant’s signature had no connection with the receipt. This is the apparent construction of the entry upon the back of the note; and the plaintiff must have so understood it when he received the note. Indeed, during the time the plaintiff has held the note he has receipted in similar language, and in a similar way, a sum of money he had received as interest on it. This shows clearly how he must have regarded the entry in question at the time he made this entry of his own. The motion states that the plaintiff proved that the defendant indorsed and delivered the note. If this was intended to mean that the plaintiff proved the facts by evidence aliunde, then the court erred in rejecting the evidence offered by the defendant to show that he did not indorse the note, but merely receipted a sum of money which had been paid as interest on the note. If by it the court intended it to be understood that [153] the plaintiff proved the fact of indorsement by the note itself, then the court erred in giving a wrong construction to the entry in question; and in either case there should be a new trial. In this opinion the other judges concurred.