Shelmerdine v. Duffy

delivered the opinion of the court. This case was tried in the district court on pleas which the parties denominate a demurer and joinder therein, as taken from the ordinary mode of pleading, according to the rules of practice, under the common law of England. In conformity to the laws and principles, established by the laws which regulate the practice of courts, under our system of jurisprudence, it is an answer to the plaintiff’s petition, by which the defendant admits all the facts, alleged by the former, but denies their legal consequence, as claimed by him. By this manner of pleading an issue in law is formed. Judgment was rendered in the court below, in favor of the defendant, from which the plaintiff appealed.

The suit is brought by the drawer of a bill of exchange, which he alleges was accepted by Johnson & Heno, and endorsed by the defendant for their use, the latter being equally lótmd injustice to pay the amount thereof *39because he was that much indebted to the plaintiff The bill at maturity was protested for non-payment by the acceptors, and notice thereof given to the defendant as endorser; it was carried back by the payee as holder, to the drawer, who was compelled to pay the amount, with interest and ten per cent damages, ail which he claims to have refunded to him by the defendant. These are the principal allegations contained in the petition. It contains also an interrogatory, which was answered by the defendant, wherein he acknowledged that he did endorse the bill, but denied being indebted to the plaintiff, and that he agreed to become surety for the acceptors.

The court below seems to have based its judgment wholly on this answer, in which we are of opinion there is error.

In the first place, it ought not to have been received in contradiction of the facts, admitted by the demurrer; and secondly, even if should, it does not contradict them so effectually as to secure the defendant from liability. By admitting the act of endorsement, the obligation resulting from it, on * the endorser, is a legal consequence; and if it necessarily render him liable to pay;the amount of the bill, the law *40must determine in what capacity and to whom . he 3⅛ liable to pay.

The.petition is not so explicit, as it might be in relation to the manner in w hich the appel-lee is sought to be made responsible; but fro® the whole contest, it is tolerably evident that the intention is to charge him as surety for the acceptors. The bill appears not to have been transferred, in the usual course of negociation, according to the custom of merchants. The payee was the holder, when he procured the endorsement of the defendant, which could have no other effect than to impose on him an obligation similar to that of the acceptors, either conjointly with them or as their surety; and perhaps he would be entitled to the privi-■ lege of division and discussion, as provided for by law incases of joint obligations or sureties; but these are privileges which must be taken advantage of by pleading, which has not been done in the present case. Unless the irregular endorsement made by the defendant be considered as a mere nullity, an act without any legal effect,-he ought to be held liable ■ on it to the ■plaintiff; for, his obligation being similar to that of the acceptors, the drawer had a right on ■paying and taking up the bill to pursue . him' *41lor the amount. But we have held already, in one or two cases, that suco endorseménts are riot without effect; on the contrary that they impose an obligation on the endorsers to pay. See Chitty on bills, Am. ed. of 1821,.p. 440, & 4 Martin, 839.

Being of opinion that the allegations in the petition are sufficient in law, to authorise the plaintiff to recover, and that according to the answer they must, be all received as true; it is ordered, adjudged and decreed, that the judgment of the district court be avoided, reversed and annulled. And it is further ordered, adjudged and decreed, that the plaintiff and appellant do recover from the defendant and ap-pellee, the sum of five hundred and sixty-two dollars and seventy nine cents, with interest thereon, at the rate of five per cent, per arm. from the date of the protest for non payment of the bill of exchange declared on, and also ten . per cent, on the amount of said bill, as damages, with costs, to be paid by the defendant in both courts.