Cahn v. Dutton

• Citation: 60 Mo. 297
• Parties: JOSEPH CAHN, Respondent, v. EDWARD DUTTON, Appellant.
• Decision Date: 31 May 1875
• Court: United States State Supreme Court of Missouri

60 Mo. 297

JOSEPH CAHN, Respondent,

v.EDWARD DUTTON, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Buchanan Circuit Court.

B. R. Vineyard, for Appellant.

Although prima facie the man who signs his name on the back of the note, not being the payee, is a maker, still he may, by parol, show that he did not sign as maker, but simply as endorser. (Seymour vs. Farrell, 51 Mo., 95; Kuntz vs. Temple, 48 Mo., 71; Mammon vs. Hartman, 51 Mo., 168; Ayres vs. Milroy, 53 Mo., 516.) And on this point the evidence was all in favor of appellant, and the finding of the court was without any vindication whatever in the testimony.

H. M. Ramey, for Respondent.

I. It is well settled law in this State, that a party who writes his name on the back of a promissory note, of which he is neither payee nor indorser, is to be treated as a maker of the note. (18 Mo., 74; 30 Mo., 226.)

The trial court sitting as a jury passed upon this testimony, and this court will not review the evidence or disturb the verdict.WAGNER, Judge, delivered the opinion of the court.

This was an action on a negotiable promissory note payable to the plaintiff, and signed by Donelan and Brown on the face, and on the back by Dutton, the defendant.

Donelan and Brown made no defence, and the defendant filed an answer, in which he stated that he never signed the note as a maker, but admitted that he signed it as an endorser, and he averred that plaintiff knew at the time he received the note that defendant was only endorser thereon.

To this answer there was a replication denying the averment of knowledge on the part of the plaintiff, that defendant signed the note only as endorser, and alleging that he signed the note with the other defendants as a joint maker.

This cause was tried before the court sitting as a jury, who, after hearing all the evidence offered by both sides, gave judgment for the plaintiff against all the defendants, and Dutton appealed.

Plaintiff asked for no instruction, and the defendant submitted one which was given, which stated the law to be,--“If the court believe from the evidence that the defendant, Dutton, signed his name on the back of said note as an indorser, and not as a maker, and such was the understanding of the parties to said note at the time, then the court will find for the defendant, Dutton, under the pleadings in this case.”

The court admitted all defendant's evidence, and gave the only declaration of law that he asked, and then found against him on the facts.

The counsel for the defendant contends that the verdict was not merely against the weight of evidence, but that there was no evidence whatever to support it. This assumption is not maintainable. Dutton testified in his own behalf that he signed the note at the request of Donelan, for his, Donelan's and Brown's accommodation,...