Merchants' Exchange Bank v. Luckow
| Decision Date | 13 December 1887 |
| Citation | 37 Minn. 542 |
| Court | Minnesota Supreme Court |
| Parties | MERCHANTS' EXCHANGE BANK <I>vs.</I> HERMAN LUCKOW and others. |
The plaintiff, as indorsee, brought this action in the district court for Winona county, upon a promissory note, against the maker, the indorsers, and the guarantors of payment. The defendants who were sued as guarantors alone answered, and the issues thus made were tried by Start, J., without a jury. Upon the facts found, judgment was directed for the answering defendants. Plaintiff appeals from an order refusing a new trial.
Tawney & Randall, for appellant.
Lloyd Barber, for respondents.
The facts out of which this action arose, as found by the court below, (and the evidence fully justified the findings,) are that the defendant Luckow signed the note sued upon, payable to Jacob Willaner & Co.; and the other defendants, except Willaner & Co., agreed to guaranty its payment, provided one Matthew Leinekugel and Mrs. Herman Luckow should also join in the guaranty; and under that agreement such other defendants wrote their names on the back of the note, and it was then left with the agent of the payees, Willaner & Co., to procure the signatures of Leinekugel and Mrs. Luckow, with the understanding that when those signatures should be procured, and not before, the guaranty or indorsements of such other defendants should become operative and of force. The signatures of such other persons were never procured. The payees named in it indorsed it to plaintiff, but there was no evidence as to when it was indorsed, nor as to whether or not plaintiff was a purchaser in good faith, without notice, and for value; for which reason the court found that the plaintiff was not such a purchaser.
It was held in Westman v. Krumweide, 30 Minn. 313, (15 N. W. Rep. 255,) and Skaaraas v. Finnegan, 31 Minn. 48, (16 N. W. Rep. 456,) that in case of an instrument not under seal, it is competent to show by parol that, notwithstanding its delivery, it was intended by the parties that it should become operative as a contract only upon the happening of a future contingent event, such as that it should first be executed by some other person. It is claimed that the rule ought not to apply to negotiable paper, but we can see no reason why, as between the original parties, it should not apply to such instruments as well as any other, nor why a transferee with notice, or without valuable consideration, or after maturity, should not take such...
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