Levering & Morton v. Washington

By the Court — Atwater, J. This case comes up.on Writ of Error to the District Court of Pamsey County, -the Plaintiffs in Error being Defendants below. The cause of action arose upon a promissory note, reading as follows, viz: $202,00. St. Paul, Aug. 27, 1857. Twelve months after date I promise to pay to the order of Andrew Levering and William H. Morton, assignees, two hundred and two dollars, with interest at three per cent, per month, value received. WM. II. EANDALL. The amended complaint alleges in substance, that on or about the 12th of October, 1857, the Plaintiff had owned and was seized and possessed of a valid claim against said Eandall for money loaned, amounting to the sum specified in said note, and that for the purpose of securing to the Plaintiff the aforesaid claim and indebtedness, the Defendant Eandall made, and the Defendants Levering and Morton endorsed, said note, [330] at tbe time of the making thereof, for the purpose aforesaid; the endorsement being’ as follows, to wit; “ Andrew Levering, William LL Morton, assignees of Wm. LI. Randall: ” that after said note was so made and endorsed, for the purpose of securing to the Plaintiff the claim aforesaid, the Defendant Eandall delivered said note to the Plaintiff, &o. The further-usual allegations in like cases are made, with statement of demand and notice of protest. The answer sets up want of consideration on the part of Defendants Levering and Morton, with denial of due notice of protest. The cause was tried by the Court and judgment rendered in favor of the Plaintiff. ■ The Plaintiff attempts to charge the Defendants on two grounds — as original makers and endorsers. In support of the first, we are cited to Marienthal, Lehman & Co. vs. H. J. Taylor, 2 Min., 147; Thompson vs. McComb, Simpson & Co., id. 139; Pierce vs. Irvine, Stone & McCormick, 1 Min. 370; Josselyn vs. Ames, 3 Mass, 373. None of these cases support the position taken by the counsel for the Defendants in Error. The first three hold that a stranger endorsing a note in blank, at the time of its inception and before delivery, for the purpose of securing the note, may be held as an original maker. The Massachusetts case was that of a guarantee by the Defendant of a non-negotiable note. The reason for the rule established in the Minnesota cases above cited, does not apply to the case at bar. As the party writing his name on the back of the note in those circumstances, could not be held as endorser of the payees, his liability as maker is recognized to prevent an entire failure of his contract. But no such necessity exists in the present case, in order to hold the Defendants responsible. Their contract is the ordinary one of endorsers of commercial paper. Their written agreement goes to that extent, and they must be held as such, if at all. We find no authority which holds that parol testimony may be introduced to show that the Defendants made a contract, by which they may be held other than as endorsers. The rule of law on this subject is well settled, oh principles of reason and justice, and should not be disturbed. [331] This brings ns to the question, whether the Defendants can be made liable as endorsers. The Defendants resided in St. Paul. The notice of protest was deposited in the Post Office at St. Paul, and directed to them at that place. The statute in force at the time of the making of the note, permitted of service of notice of protest in that manner. Session Laws, 1856, p. 9, See. J>. ' This Act was repealed July 26, 1858. {Stat. Min., p. 133.) The repeal of that Act left the protest of notes to be governed by the same rules as prevailed at common law. These required, that where the endorsers resided in the same town where the note was payable, the notice to the endorsers must be personal and not through the Post Office. Sheldon vs. Behram, 4 Mill, 129; Ransom vs. Mack, 2 Hill, 587; Cayuga Bank vs. Bennett, 5 Hill, 236; Ireland vs. Kip, 10 John. R. 490; 18 Martin's Rep., 506; 3 Kent, p. 107, 4th ed. But the counsel for the Defendant in Error claims that the law in existence at the time of the making and endorsing the note must govern, as to the manner of serving notice of protest, — that it became a part and parcel of the contract, the same as though the principles and provisions of the law had been reduced to writing and incorporated in the contract — in other words, that the law was unconstitutional as to existing contracts of this kind when the law was passed. This position cannot be sustained. The repeal of the Act does not in the slightest degree impair or affect the obligation of the Defendants upon their note. It releases them from no liability as to person or property on their contract, nor imposes any restriction upon the Plaintiff as to the time or manner of enforcing his claim against the Defendants. It can scarcely be said in any manner even to affect the remedy of the Plaintiff, and at all events, is much less open to objection on this score, than enactments to which the same objections have been urged, but which have been sustained both by this, and the Courts of other States. The principle is so fully discussed in the case of Grimes vs. Bryne, 2 Min., 87, that it is unnecessary to enlarge upon the point in this connection. The judgment of the Court below is reversed, and judgment ordered in favor of the Defendants.