Brothers v. Blumenkron
| Decision Date | 28 February 1882 |
| Docket Number | Case No. 783. |
| Citation | 56 Tex. 308 |
| Parties | HEIDENHEIMER BROS. v. J. BLUMENKRON ET AL. |
| Court | Texas Supreme Court |
ERROR from Galveston. Tried below before the Hon. Wm. H. Stewart.
The opinion states the case.
Mills & Tevis, for plaintiffs in error.
I. The charge assumes Hirsch and S. Heidenheimer were mere indorsers, because the note was payable to the order of the maker. We think this rule may obtain in other states, as in Massachusetts and in the late New York cases (13 Gray, 309, 310) parol evidence will not be received to vary their liability. 13 Gray, 403. The case in 22 Howard, 349, does not recognize the late cases decided in those states. We do not think the form of the note, of itself, fixes the liability of those who place their names on its back in its incipiency, and before delivery to the creditor; we think it depends on the intention of the parties at the time, as shown by the evidence; and such is the rule in this state. 9 Tex., 615, 619;14 Tex., 275;37 Tex., 23. Story on Notes (sec. 480) fully supports the Texas cases as to the intention of the parties and the surrounding circumstances, as shown by the proof. The same view is given in 2 Parsons on Bills, 121, who says that the rule of intention prevails in most of the states, but not in Massachusetts and New York. 9 Cal., 402, and 6 Grattan, 633, announce the general rule, and is broad enough to cover the view taken by our supreme court. The older New York cases show that one not a party to a note, placing his name on its back at its incipiency to give it credit, may be held as a guarantor. Nelson v. Dubois, 13 Johns., 175;Campbell v. Beitler, 14 Johns., 349. So, too, in Illinois. Webster v. Cobb, 17 Ill., 459;21 Ill., 636;43 Ill., 40;41 Ill., 409;3 Cent. L. J., 808.
There is a class of cases like the following: If the note was not made for the benefit of the payee, but some subsequent party to the note, and the payee's indorsement was obtained to give the paper credit with some subsequent party thereto, then the blank indorsement by the stranger to the note before delivery is treated as a second indorser; but if the note is designed for the payee and for his benefit with the creditor, then the stranger is held as guarantor. Greenough v. Smead, 3 Ohio St., 415.
The implied agreement of guaranty, as in the Texas cases, is recognized also in Nevada and Kansas. Van Doren v. Jiazler, 1 Nev., 380; Fisman v. Blood, 2 Kas., 496.
Labatt & Noble, for defendant in error??
I. Upon its face the instrument evidences that Hirsch intended to bind himself as an indorser, for it purports to have been regularly transferred to him by the payee's indorsement, and by him transferred, by his own indorsement, to the indorsee. And unless he has indicated an intention to become liable as a surety or guarantor, by some expression to that effect, he will be very clearly bound as an indorser, and be entitled to require demand and notice as a condition precedent to his determinate liability. Roberts v. Masters, 40 Ind., 463;Vore v. Hurst, 13 Ind., 551;Dale v. Moffit, 22 Ind., 114;Clapp v. Rice, 13 Gray, 403;Moies v. Bird, 11 Mass., 436;Howe v. Merrill, 5 Cush., 80;Rickey v. Dameron, 48 Mo., 61.
On December 22, 1874, Heidenheimer Bros. sued J. Blumenkron, Herman Hirsch and S. Heidenheimer on the following promissory note:
Indorsed:
S. HEIDENHEIMER.”
The petition sought to charge Hirsch and S. Heidenheimer not as indorsers, but as co-obligors with Blumenkron as his sureties. It was alleged and shown that Blumenkron being indebted to Heidenheimer Bros., in order to procure an extension on said indebtedness, executed and indorsed the note sued on, and that Hirsch and S. Heidenheimer indorsed it in the order in which their names appear, for the purpose of enabling Blumenkron to secure the extension, the note so indorsed being then delivered to Heidenheimer Bros. by Blumenkron. S. Heidenheimer, who was also a member of the firm of Heidenheimer Bros., testified that he and Hirsch agreed to put their names on the back of the note to secure it. Hirsch testified that Mrs. Blumenkron brought the note to him signed and indorsed by Blumenkron, and that he placed his name on the back of it as indorser for Blumenkron's accommodation, and on the understanding that S. Heidenheimer was also to put his name there. The court charged substantially that Hirsch was only liable as indorser, and as proper diligence to bind him as such had not been exercised, there was a verdict and judgment in his favor, but in favor of plaintiffs against the other defendants.
The suit was also brought to foreclose a mortgage given by Blumenkron to secure the debt on certain furniture. On the trial the defense was made that this furniture was exempt from forced sale, and on that branch of the case there was a verdict in favor of Blumenkron.
The case comes here on a writ of error, and the first question is: Did the court err in withdrawing from the jury the question of Hirsch's liability as joint promisor with Blumenkron?
On the part of plaintiff in error it is claimed that because Hirsch and S. Heidenheimer placed their names on the back of the note before its delivery, and were aware, when they did so, that it was to be delivered to Heidenheimer Bros., that they are bound as joint makers with Blumenkron as his sureties, if such were the intention of the parties, and that the question of intention was one of fact which should have been submitted to the jury.
Reference is made to cases in this court where one not the payee of a note, putting his name on the back of it at the time of its inception, without any words to express the nature of his undertaking, has been held liable as original promisor or surety, or as indorser, according to the evidence as to the real obligation intended to be assumed at the time of signing. Cook v. Southwick, 9 Tex., 615;Carr's Ex'r v. Rowland, 14 Tex., 275;Chandler v. Westfall, 30 Tex., 475;Horton v. Manning, 37 Tex., 23.
“The ground,” says Mr. Daniels, “upon which parol proof of intention or agreement in such cases is admitted is, that the position of the name on the paper is one of ambiguity in itself; that it is not a complete contract, as is the case of an indorsement by the...
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