Hale v. Danforth
| Decision Date | 22 April 1879 |
| Citation | 1 N.W. 284,46 Wis. 554 |
| Parties | HALE v. DANFORTH |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Outagamie County.
Action against defendant as one of two endorsers of a promissory note. Payment of the note was not demanded at maturity; but by way of excusing such demand, the complaint alleges a promise to pay the note made by the defendant before its maturity. All the facts alleged to excuse a demand and protest at maturity are denied by the answer.
There was a special verdict containing answers to twenty-three interrogatories, but no general verdict. So much of the special verdict as became important here, is recited in the opinion. The defendant appealed from a judgment in favor of the plaintiff.
Judgment affirmed.
For the appellant, there was a brief by Felker & Cleveland, and oral argument by Mr. Cleveland. They contended that the averment of the complaint that the note was indorsed by the defendant with one Edwin Fowler, showed a joint indorsement; that in such a case notice must be given to both indorsers, in order to charge either (Shepard v. Hawley, 1 Conn., 367; State Bank v. Slaughter, 7 Blackf., 133; Willis v. Green, 5 Hill, 232; Miser v. Trovinger's Ex'rs, 7 Ohio St., 281); and that there was no evidence here that Edwin Fowler ever waived a demand of payment or notice of protest. They also argued that the court erred in its rulings upon evidence, and its instructions to the jury, and in rendering judgment on the special verdict before notice of the motion for judgment had been given to defendant.
H. B Jackson, for the respondent.
The note in question was given by one Finney to the plaintiff and indorsed by one Fowler and the defendant. There can be no question but that the indorsements are several, and that the rights and liability of the two endorsers are as in Linn and another v. Horton, 17 Wis. 151.
Indorsements by two or more persons may be joint, as when partnership or otherwise joint payees are the endorsers, as in Boyd v. Orton, 16 Wis. 495, and as in the cases cited in the brief of the counsel of the appellant; and it may be that two or more endorsers might qualify their indorsement so as to be joint endorsers, and liable only as such; but the indorsements here are in the common form, following each other, and not as partners or as the payees of the note, and without qualification or restriction.
If, then, there was a waiver of notice of nonpayment or protest by the defendant as indorser, his liability to pay the note became absolute, and the plaintiff was entitled to recover, and all other questions and exceptions are immaterial.
There were special issues of fact upon this question submitted to and found by the jury; and if, from the facts so found, the legal inference or conclusion of such waiver can properly be drawn, it follows that the judgment must be affirmed. The thirteenth and seventeenth findings of fact by the jury were as follows:
"Did the plaintiff, on the day and year the said note became due and payable, or within a short time before that day, present the said note to the defendant, and did the defendant then and there...
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