Burwell v. Gaylord

• Decision Date: 29 November 1912
• Citation: 119 Minn. 426,138 N.W. 685
• Court: Minnesota Supreme Court
• Parties: BURWELL v. GAYLORD.

119 Minn. 426

138 N.W. 685

BURWELL

v.GAYLORD.

Supreme Court of Minnesota.

Nov. 29, 1912.

Appeal from Municipal Court, Hennepin County; E. A. Montgomery, Judge.

Action by C. H. Burwell against E. S. Gaylord. From an order overruling a demurrer to the complaint, defendant appeals. Reversed and remanded.

Syllabus by the Court

A complaint on a promissory note against an indorser, which fails to allege notice of dishonor, is demurrable.

The legal obligation of an indorsing payee on a promissory note is that of indorser only, and cannot be considered, or proven to be, that of a maker. M. L. Fosseen and W. A. McDowell, both of Minneapolis, for appellant.

Henry Deutsch and Breding & Fligelman, all of Minneapolis (Walter S. Whiton, of Duluth, of counsel), for respondent.

HOLT, J.

Suit on a promissory note. A demurrer to the complaint was overruled, and defendant appeals.

The complaint alleges that one George W. Hale, on October 8, 1898, executed and delivered his promissory note, whereby he promised to pay to the order of defendant herein $200 in six months from date, with interest. It is then alleged that, before delivery of the note, defendant for value indorsed his name thereon, for the purpose of giving credit thereto and inducing plaintiff to accept the same, and that plaintiff did accept and is the holder of the note. It is also alleged that at maturity the note was presented for payment, and payment refused.

[1][2] There is one fatal defect in the complaint, in that it fails to allege notice of dishonor to defendant. Michaud v. Lagarde, 4 Minn. 43 (Gil. 21); 8 Cyc. 126, and cases there cited. The pleading is evidently drawn in an attempt to make defendant, the payee named in the note, a maker. But, under an unbroken line of decisions in this state, this may not be done. Levering v. Washington, 3 Minn. 323 (Gil. 227); Barnard v. Gaslin, 23 Minn. 192;Coon v. Pruden, 25 Minn. 105;People's Bank v. Rockwood, 59 Minn. 420, 61 N. W. 457;Bowler v. Braun, 63 Minn. 32, 65 N. W. 124,56 Am. St. Rep. 449; and Porter v. Winona & Dakota Grain Co., 78 Minn. 210, 80 N. W. 965.

Barnard v. Gaslin, supra, approves the trial court's conclusion of law: ‘That the defendant, W. H. Gaslin, being the payee of the promissory note upon which this action is brought, his relation is such that he cannot, in law, be held to be the maker of such note, even though his indorsement was for the purpose of giving credit to the note.’ In Coon v. Pruden, supra, where there was an attempt to prove that defendants intended to become makers by their indorsement, though named as payees, Chief Justice Gilfillan says: ‘The case is not analogous to those in which parol evidence has been admitted to show the character which a party writing his name on the back of the note intended to assume. That can be done only where such character is not shown by the writing itself, as where, at the time of making a note, a party other than the payee indorses it.’

The defendant in the case before us is named as payee in...