Baggish v. Offengand

• Decision Date: 29 March 1922
• Citation: 97 Conn. 312,116 A. 614
• Court: Connecticut Supreme Court
• Parties: BAGGISH v. OFFENGAND et al.

116 A. 614

97 Conn. 312

BAGGISH v. OFFENGAND et al.

Supreme Court of Errors of Connecticut.

March 29, 1922

Appeal from Superior Court, Hartford County; James H. Webb, Judge.

Action by Nathan Baggish against Samuel Offengand and another brought to the superior court in Hartford county and tried to the jury before Webb, J. The plaintiff having produced his evidence and rested his cause, the court granted the motion of the defendant indorser for judgment in his favor as in case of nonsuit, and subsequently denied the plaintiff's motion to set aside this judgment, and from such denial the plaintiff appeals. Error, judgment set aside, and cause remanded to be proceeded with as if no nonsuit had been granted.

The complaint set up that the defendant Offengand, on September 10, 1919, by his note promised to pay $5,300 to the order of the plaintiff, for value received, six months after date, at a bank named; that the defendant Kaplan indorsed this note to the plaintiff; that when due the note was presented at the bank named, but was not paid; that notice thereof was duly given to both defendants; and that the plaintiff still owns the note and it has not been paid.

The defendant Offengand being bankrupt, his trustee was allowed to enter as a party defendant; but he made no defense. The defendant Kaplan filed an answer in which he set up (1) denial of all allegations of the complaint; (2) that on September 11, 1919, he placed his name on the back of the note, without consideration, and for the sole accommodation of the plaintiff; (3) and (4) usurious agreement between the defendant Offengand and the plaintiff; (5) fraudulent representations by the plaintiff, relying on which the defendant " loaned his name as aforesaid" ; and (6) material alterations of the note after he had " loaned his name to the plaintiff." In his reply the plaintiff denied these allegations of the answer.

William F. Henney and Morris Older, both of Hartford, for appellant.

Edward L. Smith, Isidor E. Finkelstein, and Thomas C. McKone, all of Hartford, for appellee Kaplan.

BURPEE, J.

To make out a prima facie case on the trial of the issues of fact framed by the pleadings in this action, it was necessary for the plaintiff at the outset merely to produce substantial evidence to prove the allegations of his complaint. The evidence so produced, which is made a part of the record before us, demonstrates that he satisfied this necessity. It includes the note in suit, bearing on its back in the order named the blank indorsement of the defendant Kaplan, of the plaintiff, of the Riverside Trust Company dated February 24, 1920, and of the Fidelity Trust Company, dated March 11, 1920, followed by the words: " Received payment through clearing house. Prior indorsements guaranteed." On the face of the note was stamped the protest for nonpayment on March 10, 1920.

In this shape the note was put before the court and jury without objection. Thereupon this defendant, notwithstanding the general denial pleaded in his answer, expressly admitted all the facts alleged in the complaint, including his signature on the back of the note. Since this signature stands without words to indicate his intention to be bound in some other capacity, the defendant must be deemed to be an indorser. General Statutes, § 4421. If he so placed his signature on this instrument that it was not clear in what capacity he intended to sign, he is to be deemed an indorser. General Statutes, § 4375. One of the liabilities thus assumed was an engagement to pay the amount of the note to a subsequent holder in due course if it were dishonored and the necessary proceedings in dishonor were taken. General Statutes, § 4424. On the pleadings and evidence the plaintiff might be deemed prima facie to be a subsequent holder in due course. General Statutes, § § 4410, 4417; Merchants' Nat. Bank v. Smith, 59 Mont. 280, 295, 196 P. 523, 15 A.L.R. 430; Thorpe v. White, 188 Mass. 333, 74 N.E. 592; Brannan's Neg. Inst. Law, pp. 50-53; 8 Corpus Juris, 468, 470; Crawford's Neg. Inst. Law, p. 96. As such holder he could enforce payment against all parties liable on the instrument. General Statutes, § 4415. His signature as indorser appeared below that of the defendant. Indorsers are prima facie liable in the order in which they indorse. General Statutes, § 4426. Without evidence produced by the defendant to show a different agreement, he would be presumed to be liable as a prior indorser.

Therefore, at this point in the trial, the plaintiff appeared not only to have made out a strong prima facie case, but to have produced sufficient evidence to prove the allegations of his complaint.

But the record shows that the defendant then made known his intention to attempt to escape the liability of an indorser by limiting the effect of his indorsement to the plaintiff by refusing to admit that it had been made before delivery of the note. He put forth the claim that, notwithstanding his indorsement and the fact that his signature was written above that of the plaintiff, the burden was on the plaintiff to prove by extrinsic evidence that this indorsement was made before delivery; that is, that the plaintiff should be compelled to produce additional evidence to establish a fact already prima facie proved by legitimate inference from evidence produced. That claim does not rest on tenable ground.

The record discloses that in this situation, at the suggestion of the defendant's counsel, the trial court intimated that the plaintiff should produce further evidence for the purpose of proving definitely that the indorsement was placed on the note before he gave the money for it to the maker. Accordingly, the plaintiff introduced testimony tending to prove the following facts:

The defendant Kaplan solicited and persuaded the plaintiff to lend $5,300 to Offengand, by means of representations concerning his financial standing and of statements that Offengand owned and had in his garage a number of automobiles which he would convey to the plaintiff as security for the loan. The plaintiff, relying on these assurances, gave his check for $5,300 to Offengand, payable to his order and dated September 10, 1919, and received from Offengand his unindorsed note for that sum, and as security a conditional bill of sale of his automobiles mentioned by Kaplan. This was done about 4 o'clock in the afternoon of September 10, 1919, and immediately afterward the plaintiff went to look for the automobiles and did not find all that were specified in the bill of sale. Then the plaintiff went forthwith to Offengand and declared that he did not like the transaction and would stop payment on the check he had given to him. Offengand immediately telephoned this information to Kaplan, and then requested the plaintiff to go with him to Kaplan's house. They did, and the plaintiff stated to Kaplan that the transaction was not what he had represented and that the automobiles which he had told him were in Offengand's garage were not there; and he declared that he was going to stop payment of his check. Thereupon Kaplan offered to indorse Offengand's note if the plaintiff would not stop payment of his check. The plaintiff accepted this proposition and handed the note to Kaplan, who then placed his signature upon it. At the same time, as security...