Herrick v. Edwards

ELLISON, J. The plaintiff brought his action on a promissory note. The trial was before the court without a jury. The finding and judgment were for defendant. The following is a copy of the note: “Jefferson City, Mo., January 10, 1898. “$900.00. “One year after date we promise to pay to the order of E. Herrick nine hundred 00-100 dollars at my place of business — ———value received with interest from date at 7 per cent. “M. F. Marks, Principal. “Morris Marks, “J. R. Edwards, Indorser.” “No.--Due. Non-negotiable or transferable.” On the back thereof are the following indorsements : “This note is not transferable nor to be used as collateral without the written consent of principal and indorsers. “M. F. Marks. “And if so used shall be absolutely void. “J. R. Edwards, Indorser.” [637] The note considered disconnected from the memoranda appearing on its face and back, would be an ordinary negotiable instrument. But in our opinion such memoranda destroys its negotiability, from the fact that it amounts to notice that the parties do not intend that it shall be used as commercial paper. Negotiable commercial notes represent money and they are intended to pass from hand to hand as money. 1 Parsons Notes and Bills, 30, 37; Story Prom. Notes, 41; People v. Bates, 120 U. S. 565. We regard the memoranda aforesaid as negativing and restraining such function and therefore rendering the note non-negotiable. But we believe it was nevertheless assignable and transferable as any other non-negotiable paper. Weber v. Rosenbaum, 37 Ill. App. 72. It is not within the power of a person executing a promissory note to another to take from it one of the principal rights of property, viz: the right of disposal. We therefore regard defendant’s undertaking to prohibit its transfer, either absolutely or as collateral, as non-effective. Merely as illustrative of this view of the law we> quote the following from 2 Coke 21, viz: “If a feoffment be made upon this condition, that the feoffee shall not alien the land to any, this condition is void: because when a man so infeoffed of lands, or. tenements, he hath power to alien them to any person by the law. For if such a condition should be good, then the condition should oust him of all power which the law gives him, which should be against, reason, and therefore such a condition is void. “And the like law is of a devise in fee upon condition, that the devisee shall not alien, the condition is void. And so it is of a grant, release, confirmation, •or any other conveyance whereby a fee simple doth pass. For it is absurd and repugnant to reason, that he, that hath no possibility to have the land revert to him, should restrain his feoffee in fee simple of all his power [638] to alien. And so it is if a man be possessed of a lease for years, or of a horse, or of any other chattel real or personal, and give or sell his whole interest or property therein, upon condition that the donee or vendee shall not alien the same, the same is void, because his whole interest and property is out of him, so as he hath no possibility of a reverter, and it is against trade and traffic, and bargaining, and contracting between man and man: and it is within the reason of our author that it should ouster him of all power given to him.” The question then remains: what obligation did defendant assume! It will be noticed that he signed his name on the face of the note at the place usually occupied by makers; but he added to his signature the word “indorser.” Now, the law is that, while regularly, the name of an indorser should appear on the back of a note, yet it is not necessary that it should. It may appear even on the face. 1 Daniels Neg. Insts., section 688; Gibson v. Powell, 6 How. (Miss.) 60. When one not the payee of a note indorses it before delivery, it will be presumed that he is a maker. But evidence is admissible to show in what character he really signed, unless the note is in the hands of a purchaser without notice. Powell v. Thomas, 7 Mo. 440; Lewis v. Harvey, 18 Mo. 74; Schneider v. Schiffman, 20 Mo. 571. But in this case there is no room for presumption, or evidence aliunde, since deceased designated the character in which he signed to be that of indorser. What, therefore, are the rights and liabilities of an indorser of a non-negotiable promissory note! In the first place, he is not entitled to have demand and pro-* test made,, or notice of non-payment. Pococke v. Blount, 6 Mo. 338; Stix v. Matthews, 75 Mo. 96. Though he termed himself “indorser,” yet he is not the indorser known to the law of negotiable commercial paper. Richards v. Warring, 1 Keyes 578, 582; Dean v. Hall, 17 Wend. 214, 215; Seaberry v. Hungerford, [639] 2 Hill 80; Hall v. Newcomb, 3 Hill. 233; Griswold v. Slocum, 10 Barb. 402. In Samstag v. Conley, 64 Mo. 476, it was decided that when the payee sold and indorsed a non-negotiable note, be was not an indorser, but was an ordinary assignor, impliedly liable only if diligence were used to collect of tbe maker. But in this case deceased was not tbe payee, and be did not indorse for the purpose of transferring title as in tbe Samstag case. He is a stranger to tbe note except as to tbe obligation be assumed when be signed as “indorser,” and we have already seen that by such signing be did not assume the liability of an indorser known to the law merchant. The question of what was his liability, has been solved by the cases from New York, cited' above, wherein it is held that he became liable as a maker or guarantor. And that his contract was the equivalent of making a new note. To those authorities may be added, Cromwell v. Hewitt, 40 N. H. 491; Seymour v. Van Slyck, 8 Wend. 421. The same view was taken of his obligation in Massachusetts. Austin v. Boyd, 24 Pick. 64. In New Hampshire: Martin v. Boyd, 11 N. H. 385. And that construction of his obligation was adopted by the Supreme Court of this State in Lewis v. Harvey, 18 Mo. 74. While our conclusion is, as shown by the foregoing, that deceased can not assume the obligation of an ordinary indorser of negotiable paper for the purpose of claiming the rights of such, character of indorser, and will not be allowed to show that it was understood he was to be such indorser; yet, he may show that he signed in any of several characters (if there be several) which the nature of his obligation will permit. We have shown that his obligation was either that of a maker or guarantor. Whether it was one or the other might be shown by him by evidence aliunde. Lewis v. Harvey, supra. But whether maker or guarantor, he could be sued [640] directly, on maturity of the note, without it being necessary to have instituted an action against the real obligor, as between themselves. Hill v. Combs, 92 Mo. App. 242, 252. The case was not tried in conformity to the views herein expressed and the judgment will be reversed and the cause remanded. All concur.