Pattee Plow Co. v. Beard, Case Number: 575

• Court: Supreme Court of Oklahoma
• Citation: 110 P. 752,1910 OK 283,27 Okla. 239
• Docket Number: Case Number: 575
• Parties: PATTEE PLOW COMPANY v. BEARD.
• Decision Date: 13 September 1910

1910 OK 283
110 P. 752
27 Okla. 239

PATTEE PLOW COMPANY
v.
BEARD.

Case Number: 575

Supreme Court of Oklahoma

Decided: September 13, 1910

Syllabus

¶0 1. PLEADING--Waiver of Error in Sustaining Demurrer. When a demurrer is sustained to a pleading, and the pleader thereupon obtains leave to amend and does amend, he thereby waives the error, if any was committed, in sustaining the objection to his pleading.

2. GUARANTY--Transfer of Non-Negotiable Instruments. The payee of a non-negotiable instrument who writes his name across the back thereof and sells and delivers the same does not thereby render himself liable to the assignee on such note either as an indorser or guarantor.

Error from District Court, Pottawatomie County; W. N. Maben, Judge.
Action by the Pattee Plow Company against H. G. Beard. Judgment for defendant, and plaintiff appeals. Affirmed.

Biggers & Lydick and Warren K. Snyder, for plaintiff in error.--Citing: Daniel, Negotiable Instruments, sec. 1757; Perkins v. Cottin, 11 Conn. 213; Cromwell v. Hewitt, 40 N.Y. 491; Prentiss v. Danielson (Conn.) 13 Am. Dec. 52; Hall v. Monohan (Iowa) 71 Am. Dec. 404; Willis v. French (Maine) 30 Am. St. Rep. 416; Banks v. Spates (W. Va). 56 Am. Dec. 828; Machett v. Anderson (Ind.) 64 N.E. 229; Shaffstall v. McDaniel, 152 Pa. St. 598; Sutton v. Owen, 65 N. C. 123; Wilson v. Black, 6 Blackf. 509 (Ind.); Bean v. Briggs (Iowa) 63 Am. Dec. 464.

B. B. Blakeney and J. H. Maxey, for defendant in error.--Citing: 7 Cyc. 673; Smith v. Myers, 207 Ill. 126; Low v. Bliss, 24 Ill. 168; Kendall v. Parker, 103 Cal. 319; American National Bank v. Sprague, 14 R. I. 410; Smith Sons' Gin & Machine Co. v. Badham, 81 S. C. 63; Gerard v. LaCoste, 1 Am. Lead. Cas., 302; Barry v. Wachosky, 57 Neb. 534; DeHass v. Difert, 70 F. 227; Fear v. Dunlap, 1 Greene (Iowa) 331; Lamb v. Storey, 45 Mich. 488; Haber v. Brown, 101 Cal. 445; Frevall v. Fitch, 5 Whart. (Pa.) 325; Jossey v. Rushin, 106 Ga. 319; First Nat. Bank of San Diego v. Falkenham, 94 Cal. 141; Kirkpatrick v. McCullough, 3 Humphrey (Tenn.) 171; South Bend Iron Works v. Paddock, 37 Kan. 510; Smurr v. Forman, 1 Ohio, 272, Chaddock v. Van Ess, 35 N. J. 517; Third Natl. Bank of Baltimore v. Lange, 51 Md. 138; Tiedman, Commercial Paper, sec. 258; Pratt v. Thomas, 2 Hill (S. C.) 654; Brown v. Hull, 33 Grat. (Va.) 23.

HAYES, J.

¶1 Plaintiff in error, hereinafter referred to as plaintiff, brought this action in the court below against defendant in error, hereinafter referred to as defendant, to recover on an alleged written contract of guaranty whereby defendant guaranteed the payment of two certain notes executed by C. C. Marsh and Seymore S. Price on the 17th day of June, 1899, to defendant, payable nine and twelve months, respectively, after date. On the 10th day of February, 1900, defendant, for a valuable consideration, to wit, in payment of an antecedent debt due by him to plaintiff, transferred the notes to plaintiff and wrote his name in blank upon the backs thereof. Defendant denies the execution of any written contract of guaranty and pleads the statute of limitation. A demurrer to plaintiff's evidence was sustained by the court and judgment rendered in favor of defendant. An objection was sustained by the court to the introduction of any testimony by plaintiff under his original petition. Of this action of the court plaintiff complains in one of his assignments, but it cannot be reviewed. The refusal of the court to permit defendant to introduce evidence was equivalent to sustaining a demurrer to the petition. Plaintiff afterwards obtained leave to file, and did file, a first and a second amended petition, under which last petition the cause was tried. When a demurrer is sustained to a pleading and the pleader thereupon obtains leave to amend, and does amend, he thereby waives the error, if any was committed, in sustaining the objection to his pleading. Board of County Commissioners v. Beauchamp, 18 Okla. 1, 88 P. 1124; Carle v. Okla. Woolen Mills et al., 16 Okla. 515, 86 P. 66; Morrill v. Casper et al., 13 Okla. 335, 73 P. 1102; Berry et al. v. Barton et al., 12 Okla. 221, 71 P. 1074.

¶2 The facts in this case present for our consideration what is the legal effect of a blank endorsement of a payee upon a nonnegotiable instrument. Upon this question both the text writers and decided cases are in irreconcilable conflict. Many of the cases that reach the same conclusion do so upon different reasoning. In Wood's Byles on Bills & Notes, at page 246, it is said:

"But if, nevertheless, the payee do indorse a bill not negotiable, he is liable on his indorsement to this indorsee. For every indorser of a bill is in the nature of a new drawer."

¶3 In vol. 1, Daniel on Negotiable Instruments, paragraph 664, it is said:

"If a note be non-negotiable, because payable to a certain person only, should he indorse it, it will be binding upon him;

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