"Plaintiff, as assignee for value before maturity of a negotiable promissory note, brought suit thereon against C. F. Winters and W. B. Strang. While the petition alleged that `defendants by their promissory note herewith filed dated May 1, 1911, for value received promised to pay,' etc., yet it also set out the note on the face of the petition in words and figures as follows:
"`$460.00 Kansas City, Mo., May 1, 1911
"`Ninety days after date we promise to pay to the order of H. A. Dougherty, four hundred sixty and no-100 dollars, at Kansas City, Mo. Value received with interest at 8 per cent. per annum. C. F. Winters.'
"`W. B. Strang (on back).'
"The petition then alleged the assignment of the note to plaintiff before maturity; that $50 had been paid thereon February 23, 1912; and that the remainder was due and unpaid, for which judgment was asked. Defendant Winters filed an answer admitting the execution of the note, but denied that there was any consideration therefor between him and the plaintiff. Plaintiff filed a reply to this answer in which the plea of no consideration was denied. Defendant Strang filed a separate answer in which he denied, under oath, the execution of the note sued on, and also denied generally all the allegations of the petition.
"At the trial a jury was waived. The note
was introduced showing Winters' signature at the bottom, in the usual place for the payor's name, and the name of W. B. Strang on the back. This was admitted to be Mr. Strang's signature. The plaintiff then introduced Dougherty, the payee of the note, who testified, without objection from either defendant, that the note was given under the following circumstances: Dougherty was agent for the Overland Auto Company and was selling automobiles for said company. Winters came to him and said he and Mr. Strang wanted to buy an automobile for use in the land business of Overland Park, and he asked Dougherty if he would take a note for part payment of the machine. Dougherty replied that he would look the matter up and let him know. Dougherty further testified that his company would not allow him to take note's directly to it in payment of machines, but, owing to Strang's financial standing, he concluded to take the note himself and give his personal check to the company for that amount. Dougherty then notified Winters that they could buy a machine in the way they proposed if he had one that suited them. Winters and Strang then came to Dougherty's place of business, where Dougherty told the latter of his decision to accept the note and pay the cash therefor to the company himself in view of Strang's standing. Strang and Winters then picked out a car, and Dougherty drove it about for them, demonstrating it and otherwise going through the preliminaries necessary to make a sale. Strang at first objected to the color of the car, saying he wanted a gray car, while this was blue. But he finally decided to take it, saying, `We will take this one.' Thereupon Dougherty drew up the note and handed it to them. There were some alterations to be made in the car, so that it was not ready for delivery until the next day. When it was ready, the money due on the car was paid, and the note, signed as above shown, was delivered, and the car turned over to defendants. No understanding was had between Dougherty and Strang as to how the note should be signed, that is, nothing was said about it, though Dougherty wrote the note, `we promise to pay,' etc.; but when it was delivered no objection was made to its being signed the way it was.
"The petition did not allege that notice of dishonor was given to Strang, nor did it allege any facts to show that, as an indorser, he was not entitled to notice; and, unless the evidence outlined above presents facts which relieve the necessity of notice, no showing of the kind was made.
"At the close of plaintiff's evidence, counsel for Strang offered a demurrer in his behalf, saying as it was presented:
"`We ask a finding in the nature of a demurrer on the part of defendant Strang, on the ground that he is an indorser on the note, and there is no proof of presentation to the maker and notice to the indorser.'
"The court overruled the demurrer, and the defendants introduced no testimony. Whereupon the court found for plaintiff and rendered judgment against both defendants for the amount due on said note. The defendant Strang alone appealed.
"1, 2. The principles by which the question of defendant Strang's liability is to be determined vary according to the interpretation placed upon the petition. If that pleading be considered as charging both defendants with liability as makers of the note, then the question is: Can parol testimony be permitted to change the written instrument sued on, by showing that Strang is not an indorser as the note says he is, but is in reality a comaker with Winters? Before the enactment of the Negotiable Instruments Law (approved April 10, 1905, Laws of Mo. 1905, p. 243, and now forming chapter 86 of the Revised Statutes of Missouri 1909), the rule in this state was that:
"`One who writes his name on the back of a note of which he is neither the payee nor indorser, becomes prima facie liable as comaker and will be held to be such in the absence of extrinsic evidence that it was the contract or understanding of the parties at the time he so indorsed it that he should be liable only as indorser.'
"See First National Bank v. Guardian Trust Co., 187 Mo. 494, loc. cit. 518, 86 S. W. 109, 70 L. R. A. 79.
"But this rule is changed by section 63 of the Negotiable Instruments Act (now section 10033, R. S. Mo. 1909), which reads as follows:
"`A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.'
"And said rule is also changed by section 64 of said act (now section 10034, R. S. Mo. 1909), which reads as follows:
"`Where a person, not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as indorser,' etc.
"See Walker v. Dunham, 135 Mo. App. 396, 115 S. W. 1086; Thorpe v. White, 188 Mass. 333, loc. cit. 334, 74 N. E. 592; Toole v. Crafts, 193 Mass. 110, 78 N. E. 775, 118 Am. St. Rep. 455; Gibbs v. Guaraglia, 75 N. J. Law, 168, 67 Atl. 81; Far Rockaway Bank v. Norton, 186 N. Y. 484, 79 N. B. 709; In re Alldred's Estate, 229 Pa. 627, 79 Atl. 141.
"The clause in section 63 of said act, `unless he clearly indicates by appropriate words his intention to be bound in some other capacity,' undoubtedly means words written upon the instrument itself, and hence this is a statutory command that the legal effect of a blank indorsement cannot be changed or varied by evidence from another source. Porter v. Moles, 151 Iowa, 279, 131 N. W. 23; Neosho Milling Co. v. Farmers' Co-operative, etc., Co., 130 La. 949, 58 South. 825; Deahy v. Choquet, 28 R. I. 338, 67 Atl. 421, 14 L. R. A. (N. S.) 847: Baumeister v. Kuntz, 53 Fla. 340, 42 South. 886; Rockfield v. First Nat. Bank, 77 Ohio St. 311, 83 N. E. 392, 14 L. R. A. (N. S.) 842; First National Bank v. Bickel, 143 Ky. 754, 137 S. W. 790. This last-named case (143 Ky. at page 757, 137 S. W. at page 791) says:
"`The purpose of the statute is to exclude parol evidence, and to make the written instrument control the rights of the parties. The statute fixing the legal effect of the instrument, parol evidence may not be received to give it a different effect.'
"So that, if the petition sued Strang as a comaker with Winters, plaintiff cannot recover, even though there was no objection to the evidence showing him to be such, since the statute says what legal effect shall be given to such
an instrument, and the court is not at liberty to give it any other effect.
"3. But the petition does not charge Strang as comaker. The note is set out in full on the face of the petition, and it shows Winters to be maker and Strang to be indorser, since it shows Strang's name appears on the back thereof. This fixes the capacity in which Strang is sued as that of indorser and corrects any misrecitation in the prior paragraphs of the petition that he was a comaker. Burroughs v. Wilson, 59 Ind. 536. Moreover, the record clearly shows that defendant Strang, in presenting his demurrer to the evidence, recognized that the petition sued him `as an indorser on the note.' Hence there ought to be no question but that the case must be decided upon the theory that Strang is sued as an indorser.
"Taking up the question of Strang's liability on this theory, what is the result? Section 89 of said act (...
