Frederick v. Winans

LyoN, J. Tbe learned counsel for the respondent maintains, first, that tbe averments of tbe complaint show that the note in suit was indorsed after delivery thereof to tbe plaintiff, and hence that in law tbe plaintiff is the first indorser, and cannot maintain an action on tbe note against the respondent, who as to him stands as tbe second indorser; and second, that if the complaint is construed as alleging tbe indorsement to have been made after the delivery of tbe note to tbe payee, it is a mere accommodation indorsement, no consideration therefor being alleged, and the payee cannot maintain an action upon it. 1. Giving to tbe complaint the liberal construction which the statute requires (R. 8., 728, § 2668), we are constrained to think that it substantially alleges an indorsement of the note [474] before delivery thereof to the payee. Obviously such was the intention of the pleader. The indorsement is alleged to have been made when the note was delivered. In King v. Ritchie, 18 Wis., 554, the same language was regarded as an averment that the note was indorsed before delivery. 2. Holding as we do that the indorsement of the note before delivery is alleged, the case is ruled by the judgment of this court in Davis v. Barron, 13 Wis., 227. The complaint in that case was substantially like the present complaint. It contained no averment of the consideration for the indorsement, yet it was held sufficient. In the opinion of the present chief justice it is said: “Obviously, a person indorsing a note before delivery thereof to the payee, intends rendering himself liable to the payee in some character and upon some ground. He must intend and design to secure its payment and give credit to the paper by placing his name upon it, even in the bands of the payee. He cannot complain if courts hold him to his contract.” This language goes further than it is necessary to go to sustain this complaint. The above cases are conclusive of this appeal. See also Cady v. Shepard, 12 Wis., 639. By the Court. — ’The order sustaining the demurrer is reversed, and the cause remanded with directions to the circuit court to overrule the demurrer.