Lincoln v. Hinzey

• Decision Date: 30 September 1869
• Citation: 1869 WL 5357,51 Ill. 435
• Parties: ALBERT F. LINCOLNv.ELIAS C. HINZEY.
• Court: Illinois Supreme Court

51 Ill. 435

1869 WL 5357 (Ill.)

ALBERT F. LINCOLN

v.ELIAS C. HINZEY.

Supreme Court of Illinois.

September Term, 1869.

APPEAL from the Circuit Court of Peoria county; the Hon. S. D. PUTERBAUGH, Judge, presiding.

The opinion states the case.

Mr. H. GROVE, for the appellant. The promissory note executed by Zeidler and Heineke only, was not properly admitted in evidence. The name of Lincoln, a stranger to the note, was endorsed on the back. It has been repeatedly held by this court that this makes Lincoln a guarantor--not a joint maker. Blatchford v. Milliken, 35 Ill. 434; Camden v. McCoy, 3 Scam. 437; Cushman v. Dement, 3 Scam. 497; Carroll v. Weld, 13 Ill. 682; Klein v. Currier, 14 Ill. 237; Webster v. Cobb, 17 Ill. 459.

Mr. THOMAS CRATTY for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action brought by Hinzey, against Zeidler, Heineke and Lincoln, as joint makers of a promissory note. On the trial, the plaintiff offered in evidence a note signed at the bottom by Zeidler and Heineke, and on the back by Lincoln. The defendants objected to its introduction, but the objection was overruled, and this decision is assigned as error.

Lincoln had, in the first instance, filed a plea denying the execution of the note by himself as maker, verified by affidavit, but this plea had been withdrawn, and a written stipulation made between the attorneys that the defendants might prove, upon the trial, that Lincoln “had signed the note as guarantor, and not otherwise,” in the same manner as if such defense had been pleaded specially. The effect of withdrawing the plea and making the stipulation was, to create a prima facie presumption that Lincoln had executed the note as set out in the declaration, which presumption might be rebutted by proof.

It is contended, however, by appellant, that the production of the note, of itself, showed Lincoln had not signed as a joint maker, and that he could not be held liable as such, his name appearing only on the back. We can not assent to this view. It is the settled law of this State, that the holder of a negotiable note, endorsed in blank, may fill up the blank with such undertaking as is consistent with the nature of the instrument and the agreement of the parties. If a note, in the hands of the payee, has upon its back the blank signature of a third person, the presumption, in the absence of proof, is, that such person endorsed as a guarantor. But the parties are at liberty to show what was their agreement, and what was the precise liability to be assumed. The mere fact that the name is upon the back of the note can not be received as conclusive proof that the person placing it there did not intend to assume the liability of a joint maker. One may become liable as joint maker without reference to the position of his signature, or whether it be found upon the face or back of the note, if it be shown, by satisfactory evidence, that the party signing did so as joint maker. Palmer v. Grant, 4 Conn. 400, and cases cited in Story on Prom. Notes, sec. 468.

If a note reads, “We, A. B., as principal, and C. D., as surety, promise to pay,” &c., and A. B. should sign the note at its foot, and C. D. upon the back, and deliver it to the payee, there could be no doubt but that the parties thus executing would be liable as joint...