Beidman v. Gray

Bates, Judge, delivered the opinion of the court. This is a suit upon a negotiable note made by Y, D. Burch to the plaintiff, upon the back of which note the defendants wrote their names. The petition charges them as makers of the note. They answered, and at the trial offered to prove that they did not execute or sign said note as makers thereof, but that they signed their names upon the back of said note under an express agreement between plaintiff and themselves that they were not to be liable for the payment of said note, only as subsequent endorsers, and should not be liable or called upon for the payment of said note until the plaintiff, or the holder of said note, should first have exhausted his remedy against Burch, the maker and payer, &c. This evidence was rejected and judgment given for plaintiff, from which the defendants appealed. The court erred in rejecting the evidence. It was competent for the defendants to show that they signed as endorsers and not as ma [283] kers. (Lewis v. Harvey, 18 Mo. 74; Schneider v. Schiffman, 20 Mo. 571.) Judgment reversed and cause remanded. Judges Bay and Dryden concur.