M'Donough v. Goule

delivered the opinion of the court.

* , The appellant seeks the reversal of a judgment pronounced against him, as holder and endorsee of a promissory note in an action against the endorsers.

The defence relied on by the endorsers was: first, the * want of due notice of protest; and secondly, that the *474plaintiff is not the owner of the note, but that it belongs , to one André Durnford; that both the plaintiff and Durnford know, that the defendants are not liable to pay the note as endorsers, because it was taken by them in payment of a part of the sugar crop of Durnford, sold by them as his agents to Tourné & Beckwith, the drawers; that the note was drawn to their order in the absence of Durnford, who received it from them afterwards, ott settlement without warranty, and that all this was to the knowledge of the plaintiff, who is also, only an agent of Durnford.

It is proved, that the note was given for the price of sugar, sold by the defendants for Durnford, who wei-e not bound to warrant the • solvency of the purchasers, and that on settlement afterwards the note was handed over to Durnford, with an endorsement in blank. The note does not bear the subsequent endorsement of Durnford, and it is shown, that the plaintiff transacts the business of Durnford, as his agent. The plaintiff has not shown that he is the bona fide holder, and that he became possessed of the note in the usual course of trade, although that fact is directly contested by the defendants. We think the proof sufficient to identify the plaintiff with Durnford, his principal, and to authorise the endorsers to show, they endorsed only as agents, and without ultimate responsibility. The evidence on this point satisfied the court of the first instance, that the defendants are not liable as endorsers, and we concur in that conclusion.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.