Salisbury v. First National Bank of Cambridge City, 4962

CourtSupreme Court of Nebraska
Writing for the CourtNORVAL, J.
Citation56 N.W. 727,37 Neb. 872
PartiesJOHN G. SALISBURY ET AL. v. FIRST NATIONAL BANK OF CAMBRIDGE CITY ET AL
Docket Number4962
Decision Date17 October 1893

56 N.W. 727

37 Neb. 872

JOHN G. SALISBURY ET AL.
v.
FIRST NATIONAL BANK OF CAMBRIDGE CITY ET AL

No. 4962

Supreme Court of Nebraska

October 17, 1893


ERROR from the district court of Douglas county. Tried below before HOPEWELL, J.

AFFIRMED.

Brome, Andrews & Sheean, for plaintiffs in error:

The plaintiffs in error are liable upon the note as indorsers only. (Ellis v. Brown, 6 Barb. [N.Y.] 282; Spies v. Gilmore, 1 Comst. [N.Y.] 321; Cottrell v. Conklin, 4 Duer [N.Y.] 45; Moore v. Cross, 19 N.Y. 227; Bacon v. Burnham, 37 N.Y. 614; Phelps v. Vischer, 50 N.Y. 69; Slack v. Kirk, 67 Pa. 380; Clouston v. Barbiere, 4 Sneed [Tenn.] 336; Fear v. Dunlap, 1 Greene [Iowa] 331; Pierce v. Kennedy, 5 Cal. 138; Jones v. Goodwin, 39 Cal. 493; Jennings v. Thomas, 13 Smedes & M. [Miss.] 617; Coulter v. Richmond, 59 N.Y. 479; Jaffray v. Brown, 74 N.Y. 394; Lynch v. Levy, 11 Hun [N.Y.] 145; Paine v. Noelke, 53 How. Pr. Rep. [N.Y.] 273; Whiting v. Pittsburgh Opera House Co., 88 Pa. 101.) The plaintiffs in error are not liable as makers. (Webster v. Cobb, 17 Ill. 459; Blatchford v. Milliken, 35 Ill. 434; Greenough v. Smead, 3 Ohio St. 415; Seymour v. Leyman, 10 Ohio St. 283; Sturtevant v. Randall, 53 Me. 154; Lowell v. Gage, 38 Me. 36; Cook v. Southwick, 9 Tex. 615; Carr v. Rowland, 14 Tex. 275; Chandler v. Westfall, 30 Tex. 477; McGwire v. Bosworth, 1 La. Ann. 248; Chorn v. Merrill, 9 La. Ann. 533; Killian v. Ashley, 24 Ark. 511.) The court below should have permitted oral testimony on the part of plaintiffs in error, showing the intent with which they indorsed the note and the fact that they were not interested in the consideration. Where a stranger signs a note on the back before delivery to the payee he is only prima facie liable as an original promisor. (Sylvester v. Downer, 20 Vt. 355; Schneider v. Schiffman, 20 Mo. 571; Childs v. Wyman, 44 Me. 433; Perkins v. Barstow, 6 R.I. 505; Currier v. Fellows, 7 Fost. [N. H.] 366; Carpenter v. Oaks, 10 Rich. [S. Car.] 17; Cecil v. Mix, 6 Ind. 478; Peckham v. Gilman, 7 Minn. 446; Vore v. Hurst, 13 Ind. 555; Orrick v. Colston, 7 Gratt. [Va.] 189.)

Congdon & Clarkson, contra:

It being admitted that the names were upon the back of the note at its delivery to the payee, the liability of the irregular indorsers is fixed presumptively as that of joint makers, and in the absence of an allegation to support parol evidence combating the presumption, parol evidence is inadmissible, particularly against a bona fide holder for value before maturity. (Robinson v. Bartlett, 11 Minn. 410; Cayuga County National Bank v. Dunkin, 29 Mo.App. 442; Melton v. Brown, 6 So. Rep. [Fla.] 211; Rothschild v. Grix, 31 Mich. 150; Weatherwax v. Paine, 2 Mich. 555; Sibley v. Muskegon Nat. Bank, 41 Mich. 196; Derry Bank v. Baldwin, 41 N.H. 434; Schroeder v. Turner, 13 A. 331 [Md.]; Stevens v. Parsons, 14 A. 741 [Me.]; Bellows Falls Nat. Bank v. Dorset Marble Co., 61 Vt. 106; Cahn v. Dutton, 60 Mo. 297; Schmidt v. Schmaelter, 45 Mo. 502; Bradford v. Martin, 3 Sand. [N.Y.] 647; Western Boatman's Benevolent Association v. Wolff, 45 Mo. 104; Lowell v. Gage, 38 Me. 35; Woods v. Woods, 127 Mass. 141; Spaulding v. Putnam, 128 Mass. 363; Austin v. Boyd, 24 Pick. [Mass.] 64; Hawks v. Phillips, 7 Gray [Mass.] 284; Semple v. Turner, 65 Mo. 696; Buchner v. Liebig, 38 Mo. 188; Leonard v. Wildes, 36 Me. 265; Schley v. Merrit, 37 Md. 352; Nathan v. Sloan, 34 Ark. 524; Chandler v. Westfall, 30 Tex. 477; Syme v. Brown, 19 La. Ann. 147; Burton v. Hansford, 10 W.Va. 470; Way v. Butterworth, 108 Mass. 512; Union Bank of Weymouth v. Wills, 8 Met. [Mass.] 504; Brown v. Butler, 99 Mass. 179; Good v. Martin, 95 U.S. 90; Draper v. Weld, 13 Gray [Mass.] 580; Herbage v. McEntee, 40 Mich. 337; Pearson v. Stoddard, 9 Gray [Mass.] 199; Clapp v. Rice, 13 Gray 403; Woodman v. Boothby, 66 Me. 389; Third National Bank of Baltimore v. Lange, 51 Md. 138; Hoffman v. Moore, 82 N.C. 313; Tiedeman, Commercial Paper, sec. 271.)

OPINION

The facts are stated in the opinion.

[37 Neb. 874] NORVAL, J.

This action was brought in the court below by the First National Bank of Cambridge City, Indiana, against the plaintiffs in error and one Cora H. Sloman as makers, and the Bank of Omaha as indorser, of a promissory note, of which the following is a copy:

"$ 2,500.00. OMAHA, NEB., Feb. 15, 1889.

"Ninety days after date, we, or either of us, promise to pay to the Bank of Omaha, or order, twenty-five hundred and no/100 dollars, for value received, payable at the Bank of Omaha, Omaha, Neb. with interest at the rate of ten per cent per annum from maturity until paid.

"C. H. SLOMAN."

[37 Neb. 875] At the time of the making of said note and its delivery to the payee the names of J. G. Salisbury and S. A. Sloman appeared upon the back thereof. Subsequently, but before the maturity of the note, it was indorsed and transferred by the Bank of Omaha to the defendant in error, The First National Bank of Cambridge City. No notice of non-payment was given to J. G. Salisbury and S. A. Sloman at maturity. The note was sent by the plaintiff below to the Bank of Omaha for collection prior to its maturity, where it remained until after the same fell due. The Bank of Omaha made no defense. Cora H. Sloman set up two defenses: First, payment; and second, coverture. The former she withdrew upon the trial. Salisbury and S. A. Sloman each filed a separate answer, which "denies that he executed and delivered the promissory note described in the petition, but avers and charges the fact to be that the defendant, at the time of the delivery of said note to the Bank of Omaha, was simply accommodation indorser thereon, the name of this defendant being written across the back of said note. Nor did said defendant receive any part of the consideration for which said note was given." Each answer further alleged that the note was not protested for non-payment, nor was notice of non-payment given to the defendants at the time of the maturity thereof.

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4 cases
  • Drexel v. Pusey, 8514
    • United States
    • Supreme Court of Nebraska
    • December 8, 1898
    ...v. Rowley, 17 Ind. 36; Potvin v. Meyers, 27 Neb. 749.) Edward W. Simeral, contra. References: Salisbury v. First Nat. Bank of Cambridge, 37 Neb. 872; Minick v. Brock, 41 Neb. 512; Chambers v. Cochran, 18 Ia. 159; Young v. Morgan, 89 Ill. 199; Matzen v. Shaeffer, 65 Cal. 81; AEtna Life Ins. ......
  • United States National Bank of Omaha v. Geer, 7607
    • United States
    • Supreme Court of Nebraska
    • June 23, 1898
    ...Roberts v. Snow, 27 Neb. 425, 43 N.W. 241; Dusenbury v. Albright, 31 Neb. 345, 47 N.W. 1047; Salisbury v. First Nat. Bank of Cambridge, 37 Neb. 872, 56 N.W. 727; Holmes v. First Nat. Bank of Lincoln, 38 Neb. 326, 56 N.W. 1011; Corbett v. Fetzer, 47 Neb. 269, 66 N.W. 417. The adjudications o......
  • Harnett v. Holdrege, 13,122
    • United States
    • Supreme Court of Nebraska
    • April 19, 1905
    ...support plaintiff's contention. As opposed to the authorities above cited and quoted from, plaintiff cites Salisbury v. First Nat. Bank, 37 Neb. 872, 56 N.W. 727, and insists that that case, with a long line of decisions from other states, together with Good v. Martin, 95 U.S. 90, 24 L.Ed. ......
  • Garnett v. Meyers, 10,304
    • United States
    • Supreme Court of Nebraska
    • July 1, 1902
    ...contract. Grand Island Savings & Loan Ass'n v. Moore, 40 Neb. 693; Seieroe v. First Nat. Bank, 50 Neb. 612; Salisbury v. First Nat. Bank, 37 Neb. 872; Muzzy v. Knight, 8 Kan. 456; Meyer v. Graeber, 19 Kan. 165, 166; Lockrow v. Cline, 46 Pac. [Kan.], 720; Brooke v. Struthers, 68 N. W. [Mich.......

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