Boyer v. Boogher

Citation11 Mo.App. 130
PartiesHENRY BOYER, Respondent, v. SIMON L. BOOGHER, Appellant.
Decision Date15 November 1881
CourtCourt of Appeal of Missouri (US)

1. One who writes his name on the back of a note of which he is neither payee nor indorsee becomes prima facie liable as co-maker.

2. To make his liability to the payee that of an indorser, he must show a contract or understanding with him to that effect.

Appeal from the St. Louis Circuit Court, THAYER J.

Affirmed.

C. P. ELLERBE, for the appellant.

J. A. ROBERTSON, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This is an action upon the following promissory note:--

“$200.

ST. LOUIS, Oct. 21, 1878.

Eighty-four days after date I promise to pay to the order of Henry Boyer, two hundred dollars, for value received, negotiable and payable without defalcation or discount, and with interest from maturity at the rate of ten per cent per annum.

D. R. BOOGHER.”

Indorsed on the back, Simon L. Boogher.”

The defence is that Simon L. Boogher indorsed the note with the understanding that he should incur only the technical liability of indorser, and not that of co-maker. The evidence to sustain this defence was substantially this: That Davis R. Boogher went to the plaintiff and asked him for a loan of $200, which the plaintiff agreed to give him, if he would get one of his brothers to indorse his note. D. R. Boogher then drew the note at the plaintiff's office, and went to his brother, Simon L. Boogher, who wrote his name on the back of it, as shown, and D. R. Boogher brought it back to the plaintiff, without saying anything as to the terms or understanding upon which Simon L. Boogher had consented to indorse it. Demand of payment was not made at the maturity of the note, nor was any notice of dishonor ever given to Simon L. Boogher until long afterwards.

The defendant asked for a declaration of law, the substance of which was, that if the court should find the evidence as thus stated to be true, the judgment should be for the defendant. This the court refused to give, and this is substantially the only question we have to consider.

It has long been the settled law of this State, that one who writes his name on the back of a note of which he is neither payee nor indorsee, becomes prima facie liable as a co-maker, and will be held to be such in the absence of extrinsic evidence that it was the contract or understanding of the parties at the time he so indorsed it, that he should be liable only as indorser. Powell v. Thomas, 7 Mo. 440; Lewis v. Harvey, 18 Mo. 74; Baker v. Block, 30 Mo. 225; Kuntz v. Tempel, 48 Mo. 71; Seymour v. Farrell, 51 Mo. 95; Cohn v. Dutton, 60 Mo. 297; Semple v. Turner, 65 Mo. 696; Butler v. Gambs, 1 Mo. App. 466. This is the contract which the law implies from the act of so indorsing; and the person so indorsing will be held to this contract, unless he shows that, at the time he so indorsed, there was a special contract or understanding that his liability should be otherwise. It is wholly immaterial what his secret understanding may have been, unless that understanding was communicated to the person who took the note or advanced his money on the faith of the indorsement. “The real contract of the parties may be shown.” Powell v. Thomas, supra. “The party charged as maker may show the real character of the transaction, and that he did not become a maker of the note by putting his name on the back--that such was not the understanding of the parties when it was made.” Lewis v. Harvey, supra. “The distinction...

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12 cases
  • Heaton v. Dickson
    • United States
    • Court of Appeal of Missouri (US)
    • December 30, 1910
    ...as such in the absence of evidence that it was the understanding at the time that he should be held in some other capacity. Boyer v. Boogher, 11 Mo.App. 131; Schmidt Malting Co. v. Miller, 38 Mo.App. Rossi v. Schawacker, 66 Mo.App. 67; Oexner v. Loehr, 106 Mo.App. 412, s. c. 117 Mo.App. 698......
  • First National Bank of Kansas City v. Guardian Trust Company
    • United States
    • United States State Supreme Court of Missouri
    • March 16, 1905
    ...the defendant prima facie liable as maker. [Powell v. Thomas, 7 Mo. 440; Lewis v. Harvey, 18 Mo. 74; Kuntz v. Tempel, 48 Mo. 71; Boyer v. Boogher, 11 Mo.App. 130.] To avoid liability, it was incumbent upon him to show that there was a contract or understanding between him and the payee, tha......
  • Heaton v. Dickson
    • United States
    • Court of Appeal of Missouri (US)
    • December 30, 1910
    ...thereof, signs his name on its back before delivery, he thus becomes prima facie a co-maker of the note and not an indorser. Boyer v. Boogher, 11 Mo. App. 130; Rossi v. Schawacker, 66 Mo. App. 67; Oexner v. Loehr, 106 Mo. App. 412, 80 S. W. 690; Schmidt Malting Co. v. Miller, 38 Mo. App. 25......
  • Oexner v. Loehr
    • United States
    • Court of Appeal of Missouri (US)
    • March 27, 1906
    ...clearly had the right to assume that Simon L. Boogher intended to assume the liability which the law affixed to his act." Boyer v. Boogher, 11 Mo. App. 130, 132. In Schmidt Malting Co. v. Miller, 38 Mo. App. 251, one of the defendants, Spellbrink, defended on the same ground Mrs. Donk does.......
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