Kuntz v. Tempel

Bliss, Judge, delivered the opinion of the court. The payee sues the indorser of a promissory note, and the defense is that the indorsement was made for the accommodation of the said payee, and not for that of the maker. The issue was submitted to the court, and judgment was given for the plaintiff. [75] The parties were the only witnesses, and they flatly contradicted each other ; the court judged of their credibility as the trial court or jury alone could do, and we are asked to reverse the judgment for alleged errors of law. First, the certificate of demand and protest was admitted in evidence, when it appeared that the note fell due on the 16th of May, 1852, but was protested on the day previous. This, it is claimed, was an error. But the day when it fell due was Sunday, and the demand and protest were made on Saturday, the 15th. Section 19 of the act concerning bills of exchange, etc. (Wagn. Stat. 217), was first enacted March 5,1855 (Sess. Acts 1854-5, p. 167), was incorporated in the revision of that year, and has ever since been in force. It expressly provides that where the day of payment of a bond, bill or note shall be upon Sunday or other named holiday, its payment shall be deemed due on the day next before that shall not be one of such holidays. This statute, from the date of its enactment, cannot apply to the note under consideration; yet so far as Sunday is concerned, and as applied to paper entitled to days of grace, it but embodies the law as it stood before. Where there were no days of grace it had been generally held that when the note, by its terms, became due upon Sunday, it was payable the following Monday. (Barrett v. Allen, 10 Ohio, 426; Avery v. Stewart, 2 Conn. 69.) But there never was any question that in ordinary commercial paper entitled to grace, if the last of the three days is Sunday or other great holiday, the holder should make demand upon the secular day next preceding, and, upon non-payment, should at once protest the paper. (1 Pars. Notes and Bills, 401, and cases cited in notes.) So the demand and protest in the case at bar was in strict accordance with the commercial law as well as with the statute since enacted, and was so far properly admitted in evidence. Counsel in argument also claims that the certificate should not have been received because it had not been filed fifteen days before the day of trial, as required by section 50 of the chapter concerning evidence (Wagn. Stat. 598). But, saying nothing in relation to the force and effect of the section, there is no evidence that the certificate was not so filed; and no objection, [76] for that reason, was made to its introduction. If counsel objected to its use because it had not been placed on file, they should have distinctly said so at the time; and the general objection for “ incompetency and irrelevancy” is not sufficient. Trials are to be conducted in good faith, and objections of mere form are to be brought distinctly to the attention of the court, or they should be considered as waived. The certificate itself is proper evidence, both competent and relevant, and we will not assume without evidence that formal requirements in regard to it were not complied with, especially when no objection in that regard was raised when it was offered. But it really makes no difference whether the protest was regular or not, for if the defendant is liable at all it is as one' of the makers of the note. He placed his name upon the back of it, and if the act was done to give the note credit with the payee, and before it was accepted by him in satisfaction of the debt due from the maker, he was a surety and not an indorser, unless he expressly stipulated that he should be held as indorser. Defendant claimed, and so testified, that he indorsed the note after delivery, and for the accommodation of the payee, but the court found that fact against him; and his counsel now insist that he can hold no other relation to the paper than as second indorser, and of course cannot be holden to the payee, who is, or is presumed to be, first. The New York authorities are cited in support of this position, without noting the' fact that they are contrary to the decisions in nearly all the States, and especially contrary to the whole current of our own. The settled law in regard to this matter is that if the note be negotiable in form, and made so in fact by the indorsement of the payee, then all other indorsers, unless the contrary be stipulated, are held as such; but if the note be non-negotiable, or be not indorsed by the payee, then, in the absence of an express agreement, the original indorsers are to be treated as makers. (Powell v. Thomas, 7 Mo. 440; Western Boatmen’s Benevolent Association v. Wolff, 45 Mo. 104; Schmidt v. Schmaelter, id. 502; Lewis v. Harvey, 18 Mo. 74.) Nor is this inconsistent with McNeilly v. Patchin, 23 Mo. 40, the doctrine of which case is recognized in McCune [77] v. Belt, 45 Mo. 174, and in Stillwell v. How, 46 Mo. 589. In these latter cases the paper was strictly commercial, was indorsed by the payee, and the accommodation indorsers were held as such in the order of their indorsements. The distinction is plain. In the absence of any express understanding as to the purport of the contract, it must be inferred from the nature of the transaction. A blank indorsement is an authority to fill the blank with matter consistent with and indicated by the act. Subsequent indorsers of negotiable paper have a right to treat ■it as indorsed to them successively, and so fill up the blanks, for such is the actual relation of the parties, to a bill or note when regularly negotiated; and it is fair to presume that parties intended to bind themselves in accordance with the' relation assumed. But it would be nonsense to fill up a blank with an order to pay an indorsee, over the name of one to whom the paper had not been indorsed, and who had no right to make such an order. The appearance of the note, unexplained, would exonerate the defendant’, for it shows an erased indorsement by the plaintiff, who is payee. But he testified that he made this indorsement after he had accepted the note with the name of the defendant upon it, and for the purpose of collection merely, and that after protest it was returned to him and he erased his name. If this statement be true— and the court must have so found it — he did not indorse to defendant, and the latter is not a second indorser. But counsel insist that the apparent relation of the parties to the paper cannot be explained ; that it would be admitting parol evidence to contradict a written instrument. But explanation is not necessarily contradiction. The parties’ names are seen upon the p'aper; when,'for what purpose, and for whose benefit were they placed there ? Speaking of the nature of the undertaking assumed by the indorsement, the Supreme Court of Indiana (Vore v. Hunt, 13 Ind. 557) says: “It is taken for granted that some kind of liability was intended. If the liability intended were written out upon the note, that of course would govern. But it not being written out, thereby leaving it uncertain whether the liability of [78] indorser, guarantor or maker was intended, the law permits parol proof to show what was the real intention of the parties, and will hold them responsible accordingly.” No other idea has ever been entertained or doctrine held; and' when a name is placed upon a note in blank, it is competent to explain the intention and purpose of him who placed it there ; and thus it was proper for the court to hear evidence and decide whether the defendant wrote his name upon the back of this note before delivery, and as surety for the maker, or whether he was an indorsee. And so the indorsement by the plaintiff can be explained. It can be shown, notwithstanding the appearance, that he indorsed it to the bank for collection, and not to defendant; and if so, it is good in his hands as though his name had never been placed upon it. This parol evidence contradicts nothing. The law only implies a particular undertaking in the absence of an actual one ; and where the latter is shown there is no room for the former. Some other points are raised, but I find no error in the rulings of the court. The judgment will therefore be affirmed. Judge Currier concurs; Judge Wagner absent.