Peckham v. Gilman

• Decision Date: 01 January 1862
• Citation: 7 Minn. 355
• Court: Minnesota Supreme Court
• Parties: PECKHAM AND SPENCER vs. M. D. GILMAN & CO.

7 Minn. 355

PECKHAM AND SPENCERvs.

M. D. GILMAN & CO.

Supreme Court of Minnesota.

Error to district court, Scott County.

Gilman & Co. brought the suit. The complaint set up a promissory note executed by Peckham, payable to plaintiffs, and alleged that before its delivery, Spencer, in order to give it credit, and to induce them to take it, indorsed his name on the back of it.

Spencer answered, alleging that he indorsed the note, with the intent and full understanding on his part, and on the part of all the parties, that he should be charged only as an indorser.

A demurrer to this answer was sustained by the court below.

Points and authorities for plaintiffs in error: —

1. The facts stated in the answer of the defendant Spencer are an effectual denial of those facts alleged in

the complaint, which go to show that the defendant Spencer was a maker of the note; Bond v. Corbett, 2 Minn. [255].

2. The defendant Spencer had the right to show, by his pleadings, or by evidence (had the plaintiffs interposed a reply), what was the character of the transaction and what was the relation which he assumed toward the note. McCombs, Simpson & Co. v. Thompson, 2 Minn. [139]; Marienthal, Lehman & Co. v. Taylor et al. 2 Minn. [147].

L. M. Brown, for plaintiffs in error.

Smith & Gilman, for defendants in error.

EMMETT, C. J.

This court, in McComb, Simpson & Co. v. Thompson, 2 Minn. [139], and in Marienthal, Lehman & Co. v. Taylor & White, id. [147], held, that a party who writes his name upon the back of a negotiable promissory note, before its delivery to the payee, and for the purpose of giving it credit with him, becomes thereby a joint maker, and that parol evidence may be given to prove these facts. The same doctrine was also held by the supreme court of the territory, in Pierse v. Irvine et al. 1 Minn. [369]; Rey et al. v. Simpson, id. [380]; and Winslow v. Boyden & Williard, id. [383]. The application of the doctrine of these cases to the one at bar, would seem to determine it at once in favor of the plaintiff below; for we are unable to distinguish between the facts of this, and the case alluded to. The defendant below claims, however, that there is a distinction in this: That in the present case the parties had verbally stipulated that the defendant should be held as an indorser only; and that the fair inference from the other decisions is, that the intention of the parties should be carried out; and that a party signing a note under such circumstances, though for some purposes regarded as a joint maker, is, nevertheless, entitled to demand and notice as an indorser. We are by no means certain that such inferences may not reasonably be drawn from these cases, but are quite sure that this court did not intend so to decide. The positive authority, however of no decision, extends beyond the facts on which it is based; and we may readily decline to follow to conclusions which the language employed in these decisions may seem to lead, if the questions were...