Davis v. Barron

By the Court,

The question arising upon the demurrer in this case, has already been passed upon by this court, in the case of Cady vs. Shepard, decided at the present term [12 Wis., 639]. In that case we held that persons indorsing a promissory note, under the circumstances in which it is alleged that Cramer and Shepard indorsed the notes mentioned in the complaint, were liable on the same as indorsers. It is very true that there -• has been very *230great diversity of opinion, among courts as to tbe ground upon wbicb parties indorsing commercial paper, before its delivery to tbe payee, could be lield — some authorities considering that they were liable as makers, some tbat they were liable as guarantors, and some tbat they were liable only as indors-ers ; still such parties have almost uniformly been held liable upon some ground. We thought the most reasonable and satisfactory ground upon which the liability of such a party was to be placed, was that of indorser. And although at first view there would appear to be a great inconsistency in holding that a party thus indorsing a promissory note was liable to the payee in the character of indorser simply, still by commercial usage we have no doubt that he must be so held, and that this is the proper construction to be given to the contract. Obviously, a person indorsing a note before delivery thereof to the payee, intends rendering himself liable to the payee in some character and upon some ground. He must intend and design to secure its payment and give credit to the paper by placing his name upon it, even in the hands of the payee. He cannot complain if courts hold him to his contract.

The complaint alleges that the notes were presented to the maker for payment when due, and that payment was refused, and that due notice of the non-payment was given the indorsers. This is sufficient to fix their liability.

The order of the circuit court sustaining the demurrer must, therefore, be reversed, and the cause remanded for further proceedings.