Mendenhall v. Gately

Davison, J. The appellee, who was the plaintiff, sued Mendenhall, as indorser of a promissory note. The note and indorsement are in this form: “By the first of January next we, or either of us, promise to pay to Stephen C. Mendenhall or order 700 dollars for value [150] received. Witness our Hands and seals this, 8th. day of April, 1856. John B. Eont, [seal.] J. M. Yowell, [seal].” “Eor value received, I assign the within note to John. J. Gately, waiving notice and demands of the law, April 8,1856. Stephen C. Mendenhall, By Sabgent P. Coeexn, Att’y.” It is averred, in the complaint, that the note and indorsements were bofh made at Marshall county in the State of Mississippi; that Coffin, who appeal’s to have signed the name of Mendenhall, was, at the time the indorsement was made, his lawfully authorized agent, and that when the note became due the makers, Font and Yowell, utterly failed or refused to pay the same or any part of it. That afterwards, on the 16th of March, 1857, and pi-ior to the first term after the note matured, the plaintiff sued the makers thereof, in the Circuit Court of said county, and that such proceedings were then and there had, that the then defendants pleaded and set up in bar of the suit, that the note was given in considei’ation of a certain loom, of which Mendenhall claimed to be the patentee, and that the consideration therein had failed; and that the plaintiff duly notified Mendenhall of the pendency of said suit, and of the defence set up by the makers of the note, and requested him to furnish evidence to sustain the note; but to do so, he utterly failed and refused; and further the plaintiff avers that at the March term, 1858, of said Marshall Circuit Court, a judgment was recovered against him in the suit upon said note, and that in the prosecution of that suit he was put to costs and expenses amounting to 150 dollars, (all of which fully appears by a transcript of the record of said suit filed herewith, &c.,) which sum' of 150 dollars, together with the amount specified in the note and interest, &c., is due and unpaid, wherefore, &c. [151] Defendant demurred to the complaint; hut the demurrer was overruled and he excepted. The issues were submitted to the Court. Einding for the plaintiff. Yew trial refused and judgment. The appellant, in his brief, says that the complaint bases the suit on the Mississippi judgment and not on the endorsement of. the note. This seems to be a mistake. As we understand that pleading, it introduces the proceedings and final judgment on the note, not as the foundation of the present action, but for the purpose of showing that due diligence had been used to collect the note from the makers. The measure of diligence thus used would be sufficient to authorize a recovery against the indorser, under the laws of this State. But the note, as we have seen, was made and endorsed in Mississippi, and the endorsement, being a contract, must, “ as to its validity, nature, interpretation and effect,” be governed by the laws of the State cwhere it was made. Story on Promissory Yotes, 178, et seq. It follows, the complaint, having ’alleged that the note and endorsement were made in Mississippi, should also have set forth the laws of that State governing the transfer of notes, such as the one in suit, because we are not allowed to presume that in respect to such endorsement the laws of Mississippi are similar to those of Indiana. Smith v. Blatchford, 2 Ind. 184; Story on Conflict, see. 316; Williams v. Wade, 1 Met. 82, 83, It is true we will presume that the common law is in force in Mississippi. Trimble v. Trimble, 2 Ind. 76; Johnson v. Chambers, 12 Ind. 102; Crake v. Crake, at the present term. But the application of that law would not render the complaint, in this case, effective, because under it the note before us is not transferable by endorsement, so as to allow the indorsee to sue the indorser. It seems to us that the complaint, having failed to set forth any law of Mississippi governing the indorsement in question, is insufficient, and should have been so’ held on de [152] murrer. Other points are made by the appellant; but as the complaint, as it stands, contains no sufficient cause of action, they do not properly arise in the record. James Perry, for appellant. Pickle Purchenal, for the appellee. Per Curiam. The judgment is reversed with costs. Cause remanded for further proceedings.