Early v. Foster

Dewey, J. — This was an action of assumpsit by Parly against Foster and Wells. The first count of the declaration sets out a negotiable promissory note made by Foster to the plaintiff, and indorsed at its date in blank by Wells; and lays a joint promise by Foster and Wells to pay the plaintiff “ the amount •of the note according to its tenor and effect. ” The second count is on a joint negotiable, promissory note made by Foster and Wells to the plaintiff. There are other counts in the declaration which need not be stated. The defendants demurred generally to the first count, and pleaded the general issue to the others. The Court sustained the demurrer, and on the trial of the issues of fact rendered a judgment for the defendants. The plaintiff offered in evidence, under the second count, a negotiable promissory note made by Foster [36] t0 P^bAiff? and indorsed by Wells, which corresponded in date, amount, and in the time and place of payment, with that described in the second count. Its admission being objecteci by the defendants, it was rejected. J. W. Chapman, for the plaintiff. J. B. Niles, for the defendants. The demurrer to the first count was correctly sustained. That count contained no cause of action against Wells, whose mere unexplained indorsement -of the note, made at its date, did not render him primarily liable, as a joint maker, to the payee ; Wells v. Jackson, 6 Blackf. 40; and he is not shown to be responsible as an indorser, so as to render him jointly liable with the maker, under the statute. But the Court erred in rejecting the note which the plaintiff offered in evidence under the second count. That count was founded on a joint promissory note made by Foster and ■Wells to the plaintiff. Though the indorsement of the note by Wells did not, of itself, render him liable as a maker, yet he may have’ indorsed it under such circumstances as showed his intention to have been to assume a joint primary responsibility with Foster. The plaintiff had a right to show that such was the fact; and to enable him to do so, the note was a necessary link in the chain of his evidence. Wells v. Jackson, before cited. Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.