Bowler v. Braun

• Decision Date: 27 November 1895
• Docket Number: Nos. 9432-(64).,s. 9432-(64).
• Citation: 63 Minn. 32
• Parties: SAMUEL BOWLER v. JULIUS BRAUN and Others.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 32

63 Minn. 32

SAMUEL BOWLER v. JULIUS BRAUN and Others.¹

Nos. 9432-(64).

Supreme Court of Minnesota.

November 27, 1895.

Action in the district court for Scott county against Julius Braun, Mathilda Braun and John Niemann. The jury rendered a verdict in favor of plaintiff for $602.50. From a judgment entered in pursuance of the verdict and also from an order, Cadwell, J., denying a motion for a new trial, defendant Niemann appealed. Affirmed.

Southworth & Coller, for appellant.

F. C. Irwin, for respondent.

BUCK, J.

On November 14, 1893, the plaintiff, a banker, having in his hands, for collection, a note belonging to the defendant John Niemann, collected it by receiving the interest due and a new note for the principal, of $550, from the makers, Julius Braun and Mathilda Braun, payable to John Niemann, the same payee. The next day after the collection was made, the new note and the interest paid, less plaintiff's charges, were delivered to the payee, John Niemann, and by him taken to his home, and kept there for five or six days, when he and his son, Fritz Niemann, also one of these defendants, returned to the bank, and the new note was purchased by the plaintiff from the payee, John Niemann. At the time the note was brought to the bank, and during the negotiations for its sale, there were no indorsements upon it. The plaintiff, however, during such negotiations, and before he bought the note, told John Niemann and Fritz Niemann that he would not buy it unless they would both indorse it. This was said to them on the day when the new note and interest were delivered. They would not then indorse it, but they returned in five or six days, when the plaintiff repeated the offer to buy the note if they would indorse it, giving as his reason for his refusal to otherwise buy it that he had understood that John Niemann had signed all of his property over to his son, Fritz Niemann. They both finally agreed to indorse the note if the plaintiff would discount it, and, before the money was paid over, both signed the note upon the back thereof; and, as John Niemann could not write his name, Fritz Niemann signed it for him, and he made his mark upon the back of the note, and below the signature the defendant Fritz Niemann signed his own name. Upon the money being paid, they delivered the note to the plaintiff so indorsed, with the signature thereon of one E. E. Chard, as a witness to the signature of John Niemann.

The note, with the signatures thereon, is as follows:

                "$550.00.                 Belle Plaine, Minnesota, Nov. 14, 1893
                

"On April 14, 1894 (without grace) after date we promise to pay to the order of John Niemann, five hundred and fifty dollars with interest at the rate of ten per cent. per annum until paid and it being the intention that this note, if not paid at maturity, shall bear the same rate of interest thereafter as before, until paid.

"No. ______. Due ______. Value received.

                                                                   "Julius Braun
                                                                   "Mathilda Braun."
                                       Indorsed on back of note
                                                His
                                          "John X Niemann
                                              Mark
                  "Witness:  E. E. Chard
                            "Fritz Niemann."
                

Both of the Niemanns claim that Fritz Niemann wrote his name across the back of the note at the cashier's request, as a witness to his father's signature. This was denied by the plaintiff, and the jury, by their verdict, found against the defendant. It is claimed by the plaintiff that Fritz Niemann was a second indorser, and that he signed for the purpose of procuring credit for the makers of the note, and thereby having the plaintiff discount it. This was denied by the appellant, Fritz Niemann.

There was no plea that Fritz Niemann signed as a guarantor, or that his signing was void, under the statute of frauds, for want of an express consideration; but, as this was not objected to, we will treat the question of his being a guarantor or indorser as one at issue between the parties, although the principal contention arising upon the evidence was whether Fritz Niemann signed the note as a witness.

An indorsement is said by the law books to be the writing of one's name upon the instrument, with intent to render liable the party who warrants payment of the instrument, provided it is duly presented to the principal at maturity, not paid by him, and such failure is duly notified to the indorser. 1 Daniel, Neg. Inst. § 666. If the indorser is the payee of commercial paper, and it is indorsed in the usual form, parol testimony is inadmissible to make his liability other than that of an indorser. Coon v. Pruden, 25 Minn. 105. In such cases there is no ambiguity or uncertainty, because the law defines the character in which the party signs, and there is nothing to explain. The apparent meaning and legal effect of the signature is indicated by its place upon the note. Whatever parol evidence may have been introduced upon the trial bearing upon the question of Fritz Niemann's being an indorser or guarantor did not change the legal effect of his indorsement, and its admission does...