Golding Sons Co. v. Cameron Pottery Co. El At.
| Decision Date | 23 October 1906 |
| Citation | 60 W.Va. 317 |
| Court | West Virginia Supreme Court |
| Parties | Golding Sons Co. v. Cameron Pottery Co. el at. |
1. Bills and Notes Parties Election of Holder.
Where one makes a negotiable note, and the payee does not endorse it, and strangers sign their names upon its back, and it is then delivered to the payee, such payee may, in the absence of an agreement or understanding that he shall. treat those signing the note on its back in a particular manner, treat them as joint promisors, or as guarantors, or as endorsers, at his election, (p. 318.)
Error to Circuit Court, Marshall County.
Action by the Golding Sons Company against the Cameron Pottery Company and others. Judgment for defendants, and plaintiff brings error.
Reversed, and Judgment entered for Plaintiff'.
J. B. Somerville, for plaintiff in error. Chas. C. Newman, for defendants in error. Sanders, Judge:
The Golding Sons Company brought an action of assumpsit in the circuit court of Marshall county against The Cam- eron Pottery Company, a corporation, S. E. Stricklin, J. N. Howard, Frank Culley and Harrison Hicks, upon a promissory negotiable note for the sum of $700.00. The action having been dismissed, it is now here on a writ of error for review.
The note sued on was payable to the plaintiff and signed upon its face by The Cameron Pottery Company and upon its back by the other defendants. It was not indorsed by the payee, The defendants who indorsed their names upon the back of the note say that they should be treated as indorsers, and as the note was not protested, they deny liability. If they should be treated as indorsers, the plaintiff has lost the right to charge them, by failing to make demand and give notice of protest, but, upon the other hand, if they should be treated as joint makers, or guarantors, no protest or notice of non-payment is necessary. The ' law is well settled in this State that where one makes a-negotiable note, and the payee does not indorse it, and another, a stranger to the note, puts his name upon its back, and it is then delivered to the payee, he may treat them both as joint makers, or he may treat the one indorsing his name upon the back as indorser or guarantor, at his election, unless he agrees before or at the time of the delivery of the note to treat the one so signing in a particular manner. The elementary principle underlying the entire matter is that the status of an irregular indorser of a negotiable promissory note is to be determined by the intention of the parties at the time of the transaction. If there is an agreement, that must govern; but if there is no such agreement, the law presumes that such irregular indorser intended to bind himself as joint maker, or as guarantor, as the payee, at any time, may elect. The cases of Powell v. Comm., 11 Grat, 822; Burton & Co. v. Hansford, 10 W. Va. 470, and Miller v. Clendenin et al., 42 W. Va. 416, fully and clearly establish this doctrine, which also finds support in the case of Young v. Sehon, 53 W. Va. 127. This being the rule, the payee has the right to charge the defendants who signed their names upon the back of the note, as joint makers, unless they can show that before or at the time of the delivery of the note to the payee, it was agreed that they should be otherwise treated.
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