Franklin v. Browning
Franklin v. Browning
Opinion of the Court
after stating the case as above, delivered the opinion of the court.
That the defendant indorsed each of the notes “Pay to the order of P. G. Browning, demand and notice waived, G. W. Franklin,” is admitted by the answer. These indorsements are contracts in writing, made in the transfer of the notes for value. The obligation assumed by the indorser by such indorsement is as certain and free from doubt or ambiguity as if fully set forth in express words, i Dan. Neg. Inst. § 717. As the indorsement waives demand and notice, the agreement of the indorser is that he will pay the notes to the indorsee or holder if they are not paid by the maker at maturity. The defense pleaded seeks to change and make different this obligation of defendant under his written indorsement by alleging a contemporaneous “understanding' and agreement,” to the effect that the defendant should not be liable upon his indorsements unless plaintiff had diligently protected
The judgment is affirmed.
4. See Bills and Notes, vol. 7, Cent. Dig.' § 691.
Reference
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- FRANKLIN v. BROWNING
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- Syllabus
- 1. Notes—Indorsement—Effect. A note indorsed “Pay to the order of B., demand, and notice waived,” is an undertaking on the part of the indorser that he will pay the note to the holder at maturity if not paid by the maker. 2. Pleading—Phrases—Understanding and Agreement. The phrase “understanding and agreement” in a pleading imports an oral agreement 8. Notes—Indorsement—Parol Evidence. Parol evidence of an oral agreement, alleged to have been made at the time of the drawing, making, or indorsing of a bill or note, cannot be permitted to vary, qualify, or contradict, or add to, or subtract from, the absolute terms of the written contract 4. Same—Rights of Holder—Security. Though a note in terms gives a lien on cattle, there is no duty on an indorsee to follow the cattle; his right against the indorser being absolute. 5. Same—Construction—Lien. A note read: “I promise to pay * * * for wintering cattle branded N. S. Cattle wintered by P. to stand good for payment of this note, and is to be paid from first shipment of cattle.” Held that, no cattle being described, so as to be capable of identification, no authority being given to take possession of cattle, but there being merely an agreement to pay from a certain fund, no lien was conferred by the note.