Seigman v. Hoffacker

• Decision Date: 16 December 1881
• Parties: LEWIS SEIGMAN, use of SAMUEL SHAFFER v. DAVID H. HOFFACKER.
• Court: Maryland Court of Appeals

57 Md. 321

LEWIS SEIGMAN, use of SAMUEL SHAFFER v. DAVID H. HOFFACKER.

Court of Appeals of Maryland

December 16, 1881

APPEAL from the Circuit Court for Baltimore County.

The case is stated in the opinion of the Court.

The cause was submitted to BARTOL, C.J., MILLER, ALVEY, ROBINSON IRVING and RITCHIE, J.

J E. Smith, and J. T. Ensor, for the appellant.

W P. Maulsby, for the appellee.

IRVING J., delivered the opinion of the Court.

The original writ issued in this cause is not in the record, and therefore it does not certainly appear whether this suit is in debt on the single bill set out in the narr., or in case on the promise of the defendant which is alleged. The theory of the appellant's counsel, as disclosed by their brief, seems to be that the defendant was liable, by virtue of his endorsement, as an original promissor or maker whereas the brief of the appellee's counsel treats the case as in assumpsit. For the purposes of this decision, it is immaterial which it is. The ruling of the Court below was correct, viewed in either aspect.

The first count in the declaration says, that Lewis Seigman, (the payee,) for the use of Emanuel Shaffer, sues David H. Hoffacker, "for that on the first day of April, eighteen hundred and seventy-two, Israel Z. Shuman, by his single bill now over-due, promised to pay to the order of the plaintiff one hundred dollars, with interest, for value received, twelve months after date; and the defendant, at the time of making said single bill, and before delivery thereof to the plaintiff, for value received, endorsed the same in writing, and the plaintiff, for value received, endorsed in writing said single bill to the said Emanuel Shaffer, the cestui que use and equitable plaintiff; and the defendant thereafter promised to pay the said single bill to the equitable plaintiff, but did not pay the same." The second count of the narr. alleges the making of the single bill by Shuman to Seigman, the endorsement by Seigman in writing, of the same to Emanuel Shaffer for value received, "and the defendant endorsed said single bill in writing, and guaranteed for value received, the payment thereof to the said Emanuel Shaffer, but did not pay the same." The third count is exactly the same as the second, only adding "a demand" and ""refusal" to pay. The defendant pleaded that he was never indebted, and never promised as alleged; that the single bill was made on Sunday; and limitations. The plaintiff joined issue on the first three pleas, and replied new promise to the fourth.

To support his case, the plaintiff offered the single bill and endorsements, and offered to prove in connection therewith, the signatures and names thereon, and that at the time of the execution thereof, and before delivery of the same to the payee, the defendant signed his name on the back, as it appears; and further, to prove that the payee, for value received, assigned the same to the equitable plaintiff; and also that afterwards on demand, the defendant had paid a part of the single bill, and promised to pay the balance. To this evidence as offered, the defendant objected, and the Court having sustained the objection and rejected the evidence, the plaintiff excepted. The correctness of the Court's ruling in excluding the proffered proof is the sole question for consideration.

The action could not be maintained as a suit on the single bill; for whatever may have been the effect of the appellee's endorsement of the single bill, it did not make him a drawer thereof, as is contended by the appellant's counsel, because his engagement was not under seal. In such case the right of action is confined to the distinct and collateral contract which the endorsement creates. Gist & Scott, Adm'rs of Gist vs. Drakely, 2 Gill, 330; Culbertson vs. Smith, 52 Md., 628. The case of Ives vs. Bosley, 35 Md., 262, and the case of Walz vs. Alback, Ex'r, 37 Md., 404, which have been cited and relied on by appellant's counsel, have no application to this case. Those cases announce the well settled doctrine, that a party who endorses a promissory note, at the time of the making thereof, and before delivery to the payee, makes himself liable as a drawer. In the interest of trade and to protect bona fide holders of such promissory notes, the law makes the ""conclusive presumption" against such endorser, that he intended to be held as a drawer, and so holds him. Where the instrument endorsed is a sealed bill a different rule applies, and the party so endorsing is presumed to enter into a different kind of engagement. Gist vs. Drakely, 2 Gill, 330.

The promise...