Long v. Smyser

Stockton, J. Various questions are raised by the demurrer to the amended petition in this cause. The most important question, however, to be decided, is as to the . right of the assignee of a promissory note not negotiable, to sue the assignor, without first demanding payment of the maker, and without notice of the non-payment to the assignor. The same question has been before this court, at the present term, in the case of Wilson v. Ralph & Van Shaick, from Linn county. We have felt inclined to follow the authority laid down in the case of Seymour v. Van Slyck, 8 Wendell, 421, in which the Supreme Court of the state of New York held, that the indorsement of a non-negotiable note, is equivalent to the making of a new note, and is a direct and positive undertaking on the paxt of the indorsers, to pay the note to the indorsee, and not a conditional one to pay, if the maker does not upon demand, after due notice. Another question raised by the plaintiff in his assignment of errors, is, as to the right of the holder of a promissory note not negotiable, indorsed in blank, to write over the blank [271] indorsement, a waiver of demand and notice, or anything else which, may render the indorsers liable, without proof of demand and notice. As such a filling up of the blank indorsement, would only be expressing in writing, what is in reality the meaning and effect of the undertaking of the indorsers, and as defendant would not be in any manner prejudiced by such an act, we are inclined to decide in conformity with the adjudications in Massachusetts and New York, that the holders of a non-negotiable note, indorsed in blank, is entitled to fill up the indorsement, by writing over it a promise to pay the contents of the note to the indorsee, or a waiver of a demand and notice. See Jocelyn v. Ames, 8 Mass. 274; Oxford Bank v. Haynes, 8 Pickering, 423 ; Herrick v. Carman, 12 Johnson, 161; Seymour v. Van Slyck, 8 Wend. 421. We are, therefore, of opinion, that the plaintiff was entitled to recover on his amended petition, and that the demurrer to the same was improperly sustained. Judgment reversed.