
    Lowell vs. Reding.
    Where one of Lvo joint promisees in a negotiable note, having it in his possession, was requested by the other to sell it and apply the proceeds to their common benefit, and he sold it accordingly; but the other refused to indorse it, being called upon for that purpose ; after which the seller indorsed it in their joint names; — it was held that the purchaser could not maintain an action on the ‘ note as indorsee, the-authority of the seller'being revoked by the refusal.
    This was an action of assumpsit, by the indorsee of a promissory note, made by the defendant, and payable to Moses Riñes and Levi Taylor, or their order; and it came up by exceptions taken by the plaintiff to the opinion of Whitman C. J. who ordered a nonsuit in the court below. The question was, whether the note bad been legally transferred to the plaintiff.' It appeared that Riñes and Taylor had formerly become the sureties of one Austin in a promissory note which he gave for a yoke of oxen; that the oxen were put into the hands of Riñes for indemnity against his surety-ship ; that Austin afterwards died, and the oxen became the property of Riñes and Taylor, to pay the note; one of which oxen Riñes sold to the defendant, Reding, taking therefor the note sued in the present action ; which note was always kept by Riñes. When Riñes was afterwards called upon to pay an execution issued against him and Taylor for Austin’s debt, he applied to Taylor for contribution; but the latter, being unable to assist him, requested him to sell Reding’s note, and apply the proceeds to pay his part of the execution, as far as they would go. Riñes informed Reding of this, and told him that the note was his for this purpose ; to which Reding made no objection, but promised Riñes to pay the note to him. Afterwards, being again called upon for payment by the officer who held the execution, Riñes sold the note to the plaintiff. They both then applied to Taylor to place his name on the back of the note, which he promised to do; but afterwards, on the same day, refused. While the parties were together, Reding joined them, and said that he had paid the note to Taylor; adding that he was about to indorse the amount on a note he held against Taylor ; who thereupon again refused to indorse it to" the plaintiff. Subsequently, on the same day, Riñes, who paid the full amount of the execution, indorsed the note to the plaintiff) in his own naihe and that of Taylor, acting as the attorney of the latter.
    Upon this evidence, Whitman C. J. was of opinion that Riñes had not sufficient authority to indorse the note in Taylor’s name, to the plaintiff; whom he therefore nonsuited.
    The question was briefly spoken to, by Greenleaf, for the plaintiff, and Downes, for the defendant; and the opinion of the Court was delivered as follows, by
   Parris J.

The case finds that the oxen, for which the note declared on was given, were the property of Riñes and Taylor.— This must have been well understood by the former, for he took the note payable to Taylor as well as himself. Both were, therefore, equally interested in the property, and neither could transfer it without special authority from the other. Riñes undertook to sell it, and, by indorsement, to transfer Taylor’s interest to the purchaser } and the question is, was he authorized so to do ?

As owners of this property they were not partners, and consequently could not bind each other as such. They were owners in common, each having an equal interest and équtil rights, and neither having the power to divest the other of his property by transfer, unless specially authorized.

The defendant promised to pay them or their order; and the plaintiff, claiming as indorsee, must show that the payees have ordered the amount due on the nóte to be paid to him-. There was nothing in the appearance of the note indicating a partnership, or that the property could be legally transferred in any other manner than by the jo.int order Or indorsement of the payees. Carvick v. Vickery, Doug. 653.

But it is argued that Riñes had a power coupled with an interest, and that such a power is not revocable. It is true he had been previously directed by Taylor to sell the note, and apply the proceeds towards paying the execution against them both ; but Riñes did not thereby assume to relieve Taylor from the execution. It still remained good against him, and for aught that appears, he was then liable to pay its full amount, and continued so liable up to the time when he was requested to indorse the note, for it is not found that Riñes had then paid any part of the execution. It does not, therefore, appear that he became the owner of Taylor’s interest in the note, either by paying or promissing to pay any thing for it, or by relieving or promising to relieve Taylor from his liability on the execution.

If Riñes was clothed with any power as agent, it was determinable at the will of his principal. It might be a power to transfer the interest, as a chose in action, without endorsement. Whether it was or was not sufficient for that purpose we are not called upon to decide. It might have been sufficient to authorise Riñes to make use of Taylor's name, and if executed before revocation might have been binding on Taylor. Such, however, neither Riñes nor the plaintiff considered it, for they both resorted to Taylor to procure his endorsement, and it was not until after he had refused that Riñes pretended to act in his name.

If Riñes was- authorised to endorse the note for. Taylor and if the plaintiff so understood it, why did they call on Taylor to do it? Why did not the agent endorse the note in behalf of his principal ? The inference is that he did not consider himself authorised ; and if he was, his authority ceased on the revocation by Taylor, and whatever the agent attempted to do subsequently in Taylor's name was clearly unauthorised.

We are of opinion that the,decision of the court below “that Riñes had not authority to endorse the note at the time of the endorsement” was correct, and the exceptions are accordingly overruled.  