Grimes v. Piersol

Elliott, J. Piersol sued Noah W. Grimes on the assignment of a promissory note executed by George W. Grimes to said Noah W. Grimes, for the payment of $100. The assignment sued on, which is indorsed on the back of the note, reads thus: “Pay Isaac Piersol, or order.” March, 6,1861. “N. ~W. Grimes.” Grimes answered, denying the assignment under oath, which was the only issue presented in the case. By agreement of the parties, the issue was tried by the court without the intervention of a jury. The coui’t found for the plaintiff, overruled a motion made by the defendant for a new trial, and rendered a judgment on the finding. The evidence is made a part of the record by a bill [247] of exceptions. The only point presented by the appellant, under the motion for a new trial, is as to the sufficiency of the evidence to sustain the finding of the court. On the trial, the defendant was called and sworn as a witness on .the part of the plaintiff, and testified that the signature to the assignment was his genuine signature, and that he wrote the letter then shown to him, which was then given in evidence, and is as follows: “Craweordsville, November 6,1861. Mr. Isaac Piersol, Thomtown, Ind'., Pear Sir: — I am in receipt of a letter from II. II Still-well, Esq., of Covington, in regard to a note of George W. Grimes, which is indorsed by me, in which he says diligent efforts were made to collect said note but failed, and says that I am now made liable and wishes me to write to you what I can do. I will just say that I am not able to pay it at present, but I will see said George W. Grimes and try and get the matter arranged, and if I fail then I will make arrangements to settle this matter, without further cost, some time during the winter, which- is as early as -I can now promise, as I have a good deal of money to pay and did not expect to have this to pay. Write me and oblige Yours truly, N. W. Grimes.” On cross-examination, Grimes further testified, “ that he assigned and transferred the said note to T. C. Barton, and filled up the assignment to said Barton. That the name of said Barton in the assignment has been erased by some one without his knowledge or consent, and the name of Isaac Piersol inserted over said erasure, without his knowledge or consent. That said letter .was written to the said Piersol under the belief that said Piersol held said note by assignment, in the regular way, from said T. C. Barton, to whom he, witness', had assigned said note.” This was all the evidence given in the cause. We assume that the facts are as stated by Grimes. The letter written by him to Piersol is in no respect inconsistent with his statements, while his explanation of the eireumstaneest, [248] under which, he wrote the letter is an unequivocal denial that he had any knowledge, at that time, of the alteration ¡of the assignment. Indeed, the facts as stated by him are not attempted to be controverted by Piersol’s counsel. The question, then, presented is simply this: Where a promissory note is assigned by an indorsement in full, to a particular person named therein, can the assignee or his vendee, without the consent of the assignor, strike the name of the assignee from the indorsement, and insert in its stead the name of such vendee, and thereby enable him to sustain a suit upon the assignment, against the assignor, as upon an ¡assignment made to himself? We think it clear that he cannot. The indorsement of a negotiable promissory note is of itself a contract, an original undertaking, and prima fade imports a good consideration, and if without qualification, it either constitutes or implies a promise that the note is due and payable according to its tenor, and that the maker is solvent and liable to pay the same. 2 Pars. on Notes and Bills 23; Johnson v. Dickinson, 1 Blackf. 256; Tam v. Shaw, 10 Ind. 469. The indorsement of a negotiable note by the payee in blank, carries with it the implied power that the person to whom it is delivered may fill up the indorsement with his own name, or the name of any other person he may desire, or leaving the indorsement in blank, he may transfer it by delivery, and any subsequent holder may fill up the indorsement to himself and sue upon it. But if the payee indorse such a note in full, as in the case at bar, the person to whom .it is so indorsed cannot change or alter such indorsement ¡by striking out his own name and substituting the name of anothex1, but must himself indorse it in order to tx-ansfer it to another, for, by indorsing it in full, the payee declares his intent not to be made liable except to suclx person, or by the indorsement so made to him. See, on this subject, 2 Pars, on Notes and Bills, 20; Smith’s Mer. Raw, 289; Edw. on'¡Bills, .268; Chitty on Bills, 257. S. C. Willson, for appellant. P. S. Kennedy, for appellee. Mr. Parsons says: “A holder cannot alter the directions already given by indorsers, and- must make out a chain to himself through them, until there is a blank indorsement.” Notes and Bills, p. 19. The reason for the rule is plain and obvious. The indorsement is the written contract of the indorser, and as such cannot be altered or changed without his consent. It is also well settled that a material alteration of an instrument after delivery, by a party who claims the benefit of it, or by one under whom he claims, made without the consent of the party against whom it is sought to be enforced, renders it void. Stoner v. Ellis, 6 Ind. 152; The State v. Polk et al., 7 Blackf. 27; Richmond, &c., Company v. Davis, id. 412. Here the alteration was clearly material. The assignment as sued on.purports to have been made directly to Piersol, and deprives the defendant Grimes of any defense he might have thereto under the statute, as against Barton, to whom the assignment was, in fact, made. The change rendered it no longer the assignment of Grimes, and no recovery can be had against him upon it. The judgment is reversed, with costs, and the cause remanded for a new trial.