Powell & Powell v. Thomas

• Decision Date: 31 May 1842
• Citation: 7 Mo. 440
• Court: Missouri Supreme Court
• Parties: POWELL & POWELL v. THOMAS.

7 Mo. 440

POWELL & POWELL

v.THOMAS.

Supreme Court of Missouri.

May Term, 1842.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

CARROLL, for Appellants.

HUDSON, for Appellee.

SCOTT, J.

David Thomas instituted an action of assumpsit against P. & J. Powell, on a promissory note, of which the following is a copy:

ST. LOUIS, March 1st, 1839.

Six months after date I promise to pay to the order of David Thomas, eight hundred and seven 61-100 dollars, for value received, with interest at the rate of ten per cent. per annum, from due until paid.

THOMAS L. FONTAINE.

On the back of the note the names of P. & J. Powell were indorsed in blank, and they were charged in the declaration as the makers of the note. On the trial, the court below instructed the jury that Thomas L. Fontaine was the party originally liable on the note, and that P. & J. Powell were his securities. There was a verdict and judgment for Thomas, the plaintiff below, from which P. & J. Powell have appealed to this court. The question is whether P. & J. Powell are to be regarded as securities to the note. This is a case of the first impression in this court, and it must be admitted is not without its difficulties. Cases from the English and American books have been cited, which show that an indorsement like that in the present case, has been regarded by some courts as evidence of an undertaking of one character, and by other courts as evidence of another and a different undertaking. All admit that the party making the indorsement is bound in some way, or in some event; but a contrariety of opinion prevails as to the time and manner of the liability attaching. Should the indorser's liability be varied from that intended by him at the time of making the indorsement, he must attribute the consequences to his own neglect, as it was in his power to define his undertaking with precision. What then is the nature of the undertaking of a party who indorses a note in blank, payable to another? The position of the name on the instrument would seem to signify that he was only to be held as indorser; but if that was the intention, he should have been the payee of the note, as otherwise he could not, by the indorsement, transfer the legal interest in the note. In the case of Morris v. Bird, 11 Mass. R. 440, similar to the present one, the court says it was plain the defendant intended making himself liable in some way. Had the note been made payable to him, negotiable in its form, the plaintiff would have been restricted to such an engagement, written over the signature, as would conform to the nature of the instrument. In such case the defendant would have been held as indorser, and in no other form, for such must be presumed to have been the intent of the parties to the instrument. But this note was not made payable to the defendant, and therefore was not negotiable by his indorsement. What then was the effect of his signature? It was to make him absolutely...