Paine v. Noelke

One who indorses his name on a non-negotidble promissory note, before its- delivery by the maker to the payee, is, in effect, himself a maker of the note; and his name, equally with that of the maker who subscribes it, imports an absolute liability for its payment at maturity. He is presumed, in law, to have thus affixed his signature for the purpose and with the intent of charging himself with liability, in order to give credit to the instrument in the hands of the payee, or of any subsequent holder deriving title from the payee. His contract is not that of an indorser, because the note is not payable to him, and is not negotiable by his indorsement. A different obligation is, therefore, to be inferred — “ ut res magi$ valeat guam pereat J Such obligation must, of necessity, be either that of maker or guarantor, and the better opinion seems to be that the con*275tract should be construed as an absolute promise to pay as a maker of the note (Richards agt. Waring, 39 Barb., 42; affirmed, 1 Keyes, 576). Inasmuch, therefore, as it appears from the complaint that one of the two defendants made the note in suit in favor, but not to the order, of the plaintiff, the payee therein named; that the other defendant indorsed it, and that it was thereupon delivered to the plaintiff; and, inasmuch as such an indorsement before delivery imports the liability of a maker, these averments, taken together, must be deemed equivalent to an allegation that the two defendants made the promissory note, and that both are jointly liable as makers thereof. Although not negotiable, the instrument is a promissory note, and, as such, imports a consideration, though none is expressed. Want of consideration is matter of defense.

The non-negotiable character of the note in suit distinguishes this case from Murphy agt. Merchants (14 How. Pr. Rep., 189), Smith agt. Smith (37 N. Y. Super. Ct., 203), Coulter agt. Richmond (59 N. Y., 478) and from Draper agt. The Chase Manufacturing Company (2 Abb. [N. C.], 79).

The demurrer must be overruled, and judgment rendered in favor of the plaintiff thereon, but with liberty to the defendant to answer, upon payment of costs, within twenty days.