Pauw v. Bank of Salem

• Decision Date: 17 January 1891
• Citation: 126 Ind. 553,26 N.E. 151
• Parties: De Pauw et al. v. Bank of Salem.
• Court: Indiana Supreme Court

126 Ind. 553

26 N.E. 151

De Pauw et al.

v.Bank of Salem.

Supreme Court of Indiana.

Jan. 17, 1891.

On rehearing. For former report, see 25 N. E. Rep. 705.

Affirming 25 N. E. Rep. 705.

McBRIDE, J.

The appellee in this case earnestly insists that a rehearing should be granted. The ground upon which this is asked can be best stated by quoting from the petition. They say: “The lamented judge who was the author of the opinion seems to have overlooked the vital point insisted upon by appellee. * * * McIntosh held a dual position. He represented himself of course, and at the same time he represented De Pauw. * * * When De Pauw signed the note, at New Albany, and sent it to McIntosh, at Salem, and failed to send special instructions, and failed to limit the authority of McIntosh, the law is that McIntosh acted as a sort of agent for De Pauw, and whatever McIntosh did with the note would bind De Pauw. * * * If De Pauw intended, when he put his name to the note, to only stand as indorsee, the law should hold him to such action as will protect the innocent and unsuspecting.” The rule of law thus invoked has no application to the facts of this case. It is undoubtedly the law that, when one signs a note in blank, or leaves blanks in it necessary to be filled in order to make it a complete contract, and delivers it in this condition, he thereby clothes the holder with implied authority to fill the blanks. And in such case, even if the blanks are filled in violation of the express understanding of the parties, he will be liable to an innocent holder, the note being negotiable. Armstrong v. Harshman, 61 Ind. 52;Cronkhite v. Nebeker, 81 Ind. 319; Pom. Com. Paper, § 181, and cases cited. The authority to fill the blank in such case is derived from the implied agency created by the maker's act in putting the paper into circulation. Id. There is, however, in such cases no implied authority to change the instrument in any respect in which it is complete and perfect when it is thus signed and issued. If the instrument lacks nothing to make it a complete and perfect contract, the mere fact that blanks are left in which other stipulations may be written confers no implied authority upon the person to whom it is intrusted to fill such blanks. Coburn v. Webb, 56 Ind. 98;Gothrupt v. Williamson, 61 Ind. 599;Cronkhite v. Nebeker, 81 Ind. 319, and numerous cases there cited. The meaning of the contract created by a blank indorsement of commercial paper is fixed by mercantile law, and the degree of liability assumed by the indorser is as fixed and certain as if its...