Gorman v. Ketchum

LyoN, J. Beyond all question, the complaint states a cause of action against the defendant M. M. Ketchum, the maker of the note, and his demurrer was properly overruled by the circuit court. Eor the purpose of determining whether a cause of action is stated against the defendant H. Ketchum, it will be assumed that the copy of the note inserted in the complaint must control the description of the note therein contained, and that the same is not negotiable. This being the case, the latter cannot be held liable on the note as an indorser, but only (if at all) as an original promisor. The complaint avers that he indorsed the note, from which it may reasonably be inferred that he wrote his name across the back of it; and we are to determine what facts must be shown to render him liable upon the note as an original promisor. Houghton v. Ely, 26 Wis., 181, is a case very similar to this in its principal features. Presiding at the circuit on the trial of that case, I instructed the jury that, “If the party wrote his name on the back of such an instrument with intent to give the contract original validity or security, he was to be deemed an original promisor.” This court held, on appeal, that the instruction was correct. The very full discussion of the subject by the chief justice, in his opinion in that case, renders unnecessary any discussion of it here. This complaint avers that the defendant H. Ketchum indorsed the note at the time it was made; that the plaintiffs paid the consideration for the note “ on the credit of such indorsement;” and that he so indorsed it “ for the purpose of procuring for the [430] maker a credit with the plaintiffs.” In view of these aver-ments, we think that it appears from the complaint that the defendant H. Ketchum “ wrote his name on the back of such note, with intent to give the contract therein contained original validity or security,” and hence, that it sufficiently charges him as an original promisor. If this opinion is correct, it follows that his demurrer to the complaint was also properly overruled. We attach no great importance to the fact that the signature of the defendant H. Ketchum on the note is designated in the complaint as an indorsement. From the averments, of fact (which, for the purposes of this appeal, must be taken to be true), we have no difficulty in ascertaining the true character of the transaction. Since the argument, our attention has been called by one of the counsel to the case of Phelps v. Vischer. 50 N. Y., 69, as an authority bearing upon this case. Without attempting to review the case at length, it is sufficient to say that Judge GrROVER, in his opinion, demonstrates by reference to many adjudged cases in that state, that were this a negotiable note, the plaintiffs could maintain an action thereon against the indorser, by averring and proving that he indorsed the same with the intention of becoming a surety for the maker, to them, upon the the note, and for that purpose. The order of the circuit court overruling both demurrers to the complaint, must be affirmed. By the Court.— Order affirmed.