
    Champion and Lathrop v. Timothy Griffith.
    The mere indorsement, upon a note, of a stranger’s name in blank, is primi* facie evidence of guaranty.
    But if made at the time of execution by the other party, or in pursuance of an intention to become responsible, it is an original undertaking; and such-person will be held as a maker of the note.
    Such intention may be proved by parol.
    The rule is the samo whether the instrument be negotiable or not.
    This is a motion to set aside a nonsuit, from the county of Franklin.
    The action was assumpsit. In the first count of his declaration the plaintiff declared, “for that, whereas, the defendant and one-Thomas BridgmaD, on March 28, 1837, made their joint and several promissory note, in writing, and then and there delivered the-same to the plaintiff; and thereby then and there promised the plaintiffs to pay them, or order, four months after the date of said promissory note, the sum of $100, for value received.”
    A count was added for money had and received. Plea, non assumpsit.
    
    On the trial, the following note was offered in evidence :
    “ Columbus, March 28, 1837.
    
      “ Four months after date I promise to pay Champion and Lathrop, or order, $100, for value received.
    “ Thos. Bridgman.”
    *On the back of the note was indorsed the name of the defendant, “T. Griffith,” in blank; also the names of “ CbampioD and Lathrop,” the plaintiffs, which appeared to have been erased.
    It was also in proof that, some time before suit brought, Griffith, received from Bridgman fifteen dollars, to be applied on the note. No other evidence being adduced, the court directed a nonsuit.
    E. Backus, for plaintiff, in support of the motion, contended:
    That a note of this description, the signatures not being disputed, furnishes, of itself, presumptive evidence that tbe defendant put his name upon it at the time of its execution; and where a person, not originally a party to such a note, puts his name upon it in blank, at the time of its execution, he becomes, by relation, a party, and may be proceeded against as maker. And it is unnecessary, for the plaintiff’s recovery, that he should give any further evidence of the intention of the person so indorsing, to-bind himself either as surety, or maker, with the other- promisor. The law presumes that, and if the presumption be wrong in fact, the person so indorsing has the right, and it is incumbent on him to show, that his indorsement was made with a different intent and moaning ; and this may be shown by parol testimony.
    These positions are fully sustained by the decision of this court, in the case of Bright v. Carpenter and Schuer, 9 Ohio, 139.
    That case was an action of assumpsit against the defendants, as makers of a promissory note precisely like this, Carpenter’s signature being at the foot of the note, and Sehuer’s being indorsed on the back of it in blank. Upon the trial, the note was offered1 in evidence, and objected to as being the note of Carpenter, Schuer being guarantor only. The plaintiff then offered to prove hovr Schuer’s name came upon the note, for the purpose of repelling the presumption that be was an indorser, and for the purpose of showing that his name was signed thereon at the time of its exoeution. Schuer objected *to the competency of the evidence. And the case was reserved for the consideration of the admissibility and effect of the evidence. The court held that if a person not a party to the note, sign his name to such paper at the time of its execution, without prescribing the limits o! his responsibility, he authorizes the holder to treat him as maker, and is as much bound as if his name was written under that of the principal ; that whore a person not originally a party to the note signs his name upon it in blank at the time of its execution, he becomes by relation a party, and may be proceeded against as maker, and that the note itself furnishes presumptive evidence of this relation by the application of the rule that a contract is construed most strongly against the party bound ; and the parol evidence offered by the plaintiff was unnecessary for his recovery, and gave judgment for the plaintiff.
    The plaintiffs are also fully sustained in the positions taken by them in the case of Moies v. Bird, 11 Mass. 436. This case is like the one above referred to. One-B. Bird made his promissory note, payable to the plaintiff (Moies), or order, one year after date. Upon the back of the note was the name of A. Bird, the defendant, who alone was sued as maker. And the court held that the indorsement in blank by the defendant was the samo in effect as if his signature had been upon the face of the note, under the signature of B. Bird, the other promisor, and that the effect would be to make the defendant a surety for the other promisor, unless fho indorsement was explained by evidence, and proved to have been made with some different intent and purpose, and it was incumbent on the defendant to prove some different intent or meaning of his signature.
    If the plaintiffs are right in their positions, then the nonsuit •ought to be set aside, and if this be done, they ask judgment on the note, as it is understood the defendants have no evidence to offer.
    *S. Brush, for defendant, contra:
    ri he nonsuit was right, because:
    1. As the case stood the plaintiffs had not proven their partnership as alleged in the declaration, and I know of no law dispensing with such proof.
    
      2. The fair legal presumption, arising Irom the facts proved, was, that the promissory Dote in question was made and delivered by the maker, Bridgman, to the plaintiffs, and by them indorsed to defendant. That the defendant then collected and received from the maker the sum of about fifteen dollars, and returned the note to the plaintiffs, omitting to erase his name.
    The only circumstance militating against such presumption is the fact of the possession of the note by the plaintiffs.
    The erasure of plaintiffs’ names on the back of the note is nothing, as it could as well be done in the one ease as the other.
    The order of the names, though not proven, is of no avail, because it is a frequent occurrence in indorsements in blank, to put a later indorsement over, or nearer the top of the paper than the former. It was done in the two cases hereafter cited from 17 and 24 Pick.
    No dates appear to the indorsement, and no proof when either was made.
    If the indorsement of plaintiffs’ names was made last, for the purpose of being negotiated, it could easily have been shown by the person to whom negotiated. And it is the duty of plaintiffs, and not of defendants, to explain the facts necessary to their recovery.
    The presumption claimed by us is in accordance with the usual course of business, and the contrary, to say the least, a very rare case. Then add to that the fact that defendant collected, and received from, the maker, part of the amount of tho note, and the weight of the evidence on this point is with the defendant.
    *What right had defendant to collect money on the note cf the maker, if not the owner of the note ? How could he make such collection, if not the owner of the note, and in possession thereof?
    If I am wrong in my conclusions as to the correct presumptions arising from the facts proven in this case on this point, the only inference loft is, that defendant put his name on the back of the note to enable the plaintiffs to get the note discounted, that the plaintiffs then indorsed the note and negotiated the same.
    In such case the defendant is clearly to be held as an indorser merely, and entitled to all the privileges of an indorsor. In this I am sustained by the cases of Pierce et al. v. Mann, 17 Pick. 244, and Austin v. Boyd, 24 Pick. 24.
    
      In the last-cited case the name of the payee, as well as the defendant’s name, appearing on the bank of the note, the plaintiff was permitted, and, of course, required before recovery to prove,, by parol, the circumstances under which ho had written and erased his name. No such evidence was given in this case. The-cases cited are precisely similar, except in. those cases, the payee wrote his name over the defendant’s, although after the defendant’s indorsement, which proves that the place where indorsed is not evidence of the time of indorsement. "
    If we are right in either view we have taken of this point in the-ease,judgment must be rendered for defendant; as in the first, view, the plaintiffs have no right of action, and never had, agains-4 defendant on this note; and in the last they can not recover under this declaration, nor without proof of demand of the maker and' notice to the defendant.
    3. The only remaining point in the case, and the point upon which the ease turned, and the nonsuit was granted, is:
    Is the name of a person, not a party to negotiable paper, appearing upon the back of such paper in blank, without any evidence to show how it came there, to bo presumed to have been put there at the time of the making of the note, or subsequently, or-if no presumption arises either way?
    *Upon examination of the cases decided in Massachusetts,, the result will bo found to be, that where a person, not a party to a promissory note, puts his name on the back at the -time of the-making of the note, he is to be considered as a joint promisor or surety; but where a person, not a party, puts his name upon the back of a promissory note, after the making thereof, he is to be considered as a guarantor only, and there must be a consideration-for bis promise.
    The case of Tenny v. Prince, 4 Pick. 385, “ was upon an indorseinent by the defendant on a negotiable promissory note, given by L. Pierce to the plaintiff, dated December 1, 1820, payable in-twelve months, with interest after six months.
    “ The indorsement was made in blank, about three months before the note became due, and was filled up by the plaintiff as-follows: ‘Eastport, Dec. 1, 1820. Eor value received, I promise-to pay Perley Tenny or order, the within sum, 1824.65, in twoLve months from date, with interest after six months.’ ”
    Parker, C. J.: “ We do not think thore was any authority in the plaintiff to make this uso of the signature, because it is inconsistent with the circumstances under which the signature was given. It is impossible to infer an original promise to pay this note, coeval with its date, from a signature put upon it nine months aiter. Nor does the case of Moies v. Bird, 11 Mass. 436, relied upon by counsel for complainants in this case, support it; for though the signing of Bird was two or three days after the note-was made, there were facts from which an agreement to be responsible from the beginning was justly inferred.”
    The learned judge then decides that the signature was a guaranty “which might be enforced, if made upon legal consideraration, and not otherwise.” But the courts of Connecticut have repeatedly held otherwise.
    In Bradley v. Phelps, 2 Root, 325, it was determined by the-highest judiciary in that slate that such indorsement was not an engagement that the note should be paid in all events, but *that the indorseo or payee, by the use of due diligence, should be able to obtain payment of the maker.
    But if a warranty of any kind was intended, the courts of Connecticut have invariably and uniformly declared that the contract is conditional; not that the maker should pay the note at maturity, or that the indorser should pay it, but that it is collectible by active diligence.
    And in the case of Beckwith v. Angel, 6 Conn. 324, Hosmer, C. J., says: “And, however courts in the contiguous states have differed from us in the construction of the before-mentioned contract; yet, in one particular, there has been a universal harmony, and that is,in considering indorsements in blank, on notes not negotiable and on negotiable notes when not made by a party, but to insure the maker’s responsibility, as possessing the same legal effect.
    The same doctrine is contained in Swift’s Treatise on Bills of Exchange and Promissory Notes, 342, and the first volume of Swift’s Digest, 431.
    But if the court should conclude to adhere to the opinion of the-Massachusetts courts in preference to those of Connecticut, we say further, that in none of the cases decided in Massachusetts did the point in this case arise, or has the same been decided.
    In the case of Moies v. Bird, parol proof was given by both, parties; by the defendant, principally to show that defendant refused his signature, and only signed to make the plaintiff easy,. but would not be accountable for a farthing upon the note; by the plaintiff, to prove the time of the signature by the defendant, ■and the agreement to sign, at the time of the bargain made by the principal, his brother.
    The judge who tried the cause, and not the full court, held and directed the jury “that if they believed that the plaintiff conveyed his land to B. Bird, upon the expectation of security by the ■name or indorsement of Abraham or William Bird, as guarantor of B. Bird’s notes, and had obtained the defendant’s indorsement upon the note in question, in consequence of that agreement, they might find for the plaintiff; and that the ^indorsement in blank, by the defendant, was of the samo effect as a signature upon the face of the note, under the name of B. Bird, would be; in which case the defendant would be considered as a surety for B. Bird in the same promise, unless the indorsement had been explained by the evidence and proved to have been made with some ■different intent and purpose; and it was incumbent on the defendant to prove some different meaning or intent of his signature.”
    Now, what is the just inference from the language of the learned judge? It seems to me to be this: When it appears in evidence that the signature was, at the time of the making of the note, or in the language of the chief justice, in Tenny v. Prince, “ thero wore facts from which an agreement to be responsible from the -beginning may be justly inferred,” the legal presumption arising from such fact or facts is, that the defendant intended to become a joint promisor and surety; and if, in reality, there was some ■different meaning intended, such as a guaranty of payment by the maker, or that the note could be collected from the maker, etc., the defendant must prove it.
    And I am sustained in my views by the practice of learned counsel in that state, both in that and the subsequent case of Tenny v. Prince, where the plaintiff proved the time and circumstances of the signature.
    And the judge, in using that language, could not have intended that it was incumbent on the defendant to prove the time of his •signature, as that was in evidence, by the testimony of John .Eaton, sworn for the plaintiff. Then, in Massachusetts, this point •has never come up for decision, but the uniform practice has been, as we claim the rule to be, for the plaintiff to prove when the defendant’s signature was made.
    But this point has been decided in the case of Beckwith v. Angel, 6 Conn. 317, already cited. Peters, J., says : “ The undertaking of an indorser is always collateral, unless made otherwise by. special agreement. But the defendant was not an indorsor, because he was neither promisee or indorsee. Palmer v. Grant, 4 Conn. 389. His contract was, therefore, ^necessarily special, and whatever the parties chose to make it. Had it remained blank, it must have been considered, prima facie, a guaranty or nothing. This depended on the inducement and intention with which the defendant wrote his name; and the question now is, could these be proved by parol?” Three of the judges decided they could, while Hosmer, C. J., was of a contrary opinion. No ■difference of opinion, however, existed as to the prima facie effect of such an indorsement.
    Upon this point, then, the weight of authority, so far, by the practice in Massachusetts and decisions in Connecticut, is with the defendant in this case.
    Has the law been changed in Ohio ?
    The case of Greene v. Dodge and Cogswell, 2 Ohio, 430, wasprocisely similar to the present. It is true, in that case, the indorsement made in blank was subsequently filled up as a guaranty. Why was this so done? For the reason that the practice had always been to consider such indorsements as guaranties. The court say: “ The mere lact of writing their names upon the note, would not subject the defendants.”
    As I understand that decision in full, it is in cases like the present, the prima facie presumption, that the indorsement would be a guaranty. It is true, the question decided was only where the character of a guarantor was claimed, not “ ascertained.”
    At the same time, an opinion was given as to the character of such indorsements, which, obiter dicta, we claim to be as good authority as similar opinions in other cases, and no more. The next case, and the one chiefly relied upon by the counsel for the plaintiff in this case, is the case of Bright v. Carpenter and Schuer, 9 Ohio, 139. In that case, there is one loose sentence, perhaps incorrectly reported, which I apprehend to have been the cause of all the doubt in the case on this point. “The parol evidence offered by the plaintiff is unnecessary for his recovery.” That-•question did not arise in the case. It was not necessary to decide it; and if that remark is correctly ^reported, which I do not believe, it was a mere obiter dictum, and not binding in this case.
    In that case, the counsel for the plaintiff believing the law to be as I have supposed, offered evidence to prove when, and circumstances under which Schuer’s name came upon the back of-the note. In the same case, the defendant’s counsel, believing the law to be as laid down by Chief Justice Hosmer, in Beckwith v. Angel, objected to the evidence, as tending to contradict a written •contract.
    Two questions wore before the court, and were decided.
    1. As held in Massachusetts, that whore the name of a person, not a party, appearing upon the back of a promissory note, if placed there at the time of its execution, he is to-be considered as ;a joint promisor, etc.
    2. That the plaintiff, in such case, might introduce parol proof •of the time and circumstances of the signature.
    The next and last case is that of Parker v. Riddle, 11 Ohio, 102, 108. The court there say: “All unite in opinion that the name of the payee, in blank, appearing upon the face of tho note is not a guaranty, but an indorsement; while the name of a per-son, out of the note, appearing upon it, would be a guaranty.”
    I admit that it was not necessary to decide that point, and the ibove may also be considered as obiter dicta, but it is the united •obiter dictum of the whole court. It is also in accordance with the decisions of Connecticut, and the practice in Massachusetts and •Ohio, and not conflicting with the decision in Bright v. Carpenter and Schuer, to wit:
    
      Prima facie, a guaranty, in the language of Judge Peters, •already cited, subject, however, to be controlled by proof to the contrary.
    Since writing the above, I find the last point above made, • clearly decided in the following cases, to which I ask the particular attention of this court: Dean v. Hall, 17 Wend. 214; Seabury v. Hungerford, 2 Hill (N. Y.), 80; Hall v. Newcomb, 3 Hill (N. Y.), 233, 234. Those cases are precisely similar to the present, and the old-cases reviewed; *and it was held, that the defendant was to be considered as an indorsor, entitled to notice, •and not a joint maker, or guarantor.
    
      E. Backus, for plaintiff, in reply:
    It is true that the language quoted from the case of Moies v. Bird, 11 Mass., is the language of the judgo who tried the case in his charge to the jury. It is also true that the whole court held that “ the charge of the judge was right.”
    The court will perceive that the practice of the learned counsel in this case is different from what is claimed by defendant. The •case was opened by the plaintiff’s production of the note. We have no further evidence until after the defendant had introduced evidence for the purpose of showing a different meaning to his .signature than that of surety or maker, and then evidence was introduced by the plaintiff to rebut.
    Decisions of other courts may be found establishing and giving various different characters to a signer on the back of a note, such as the present — different from that given by this court in the case of Bright v. Carpenter. They have been held to be nothing at all; they have been held as guarantors, and as indorsers, and as makers. And for the purpose of establishing, in Ohio, their character, the case of Bright v. Carpenter was reserved. It was fully argued and deliberately determined that it was that of surety, and that the party might be sued as maker; and that the note itself furnished sufficient evidence of the fact, subject to be l’ebutted by evidence from the defendant. The case of Parker v. Riddle does not affect the ease. That case was upon diffoi'ent paper — it was. not mercantile paper, and the parties were different; the suit was brought by an indorsee against the payee of a note not negotiable. And the court in delivering their opinion on that case do not even allude to the case of Bright v. Carpenter, and could not therefore have intended to affect or alter that decision.
    *1 did not suppose, at the time of the trial, that the partmership of the plaintiffs was disputed, as it was a fact resting within the knowledge of at least half a dozen members ol the bar, including the counsel for the defendant, who were present at the trial. And the court would not have nonsuited the plaintiff upon this technical ground, oven after motion made for that purpose, but would have allowed the plaintiff to prove, as he was ready to do, the partnership. In fact, the nonsuit was not granted upon that ground at all, but upon the sole and only ground that the name ol the defendant appearing upon the back of the note, and the plaintiff offering no evidence to show hoW and under what circumstances it was put there, he was to be considered as guarantor and could not be sued as maker.
   Wood, J.

Did the court err in nonsuiting the plaintiff? An examination of the authorities has led us to the opinion that no-error was committed. The note was not shown .by the proof to-be the joint and several note of the defendant and Bridgman, and, therefore, it did not support the cause,of action as laid. The authorities cited, to show that the undertaking of Griffith was original and not collateral, are cases where the name was indorsed upon the note at the time of its execution or in pursuance of an agreement to be responsible from the date of the note. In the case at bar it was not shown when Griffith’s indorsement was made, but, from the (acts in evidence, it is fair to presume that bis name was indorsed on the note, not at the time, but after its execution by Bridgman. We think it is a question of intention between the parties, and therefore hold:

1. That the mere indorsement upon a note, of a stranger’s name in blank, is prima facie evidence of guaranty.

2. To charge such person as a maker, there must be proof that his indorsement was made at the time of execution by the other-party, or, if afterward, that it was in pursuance of an agreement or intention that he should become responsible from the date of the execution.

*3. Such agreement or intention may bo proved by parol..

4. 'The rule is the same whether the instrument be negotiable or not. Motion overruled.  