
    Marienthal, Lehman & Co. Plaintiffs in Error, vs. H. J. Taylor and J. V. R. White, Defendant in Error.
    A party who writes his name upon the back of a note at its inception, and before it is delivered to the payees or any one, is liable as a maker.
    An allegation that the defendant so signed the note„“to secure the same, and to induce the plaintiff to receive the same in payment of an existing claim in his favor,” is not an allegation of a fact, but is a conclusion which is drawn from the fact that he wrote his name on the back of the note before it was delivered to any one. And it is incumbent upon the defendant to rebut this presumption, by averment and proof of facts if any exist.
    This was a writ of Error to the District Court of Ramsey County. The issues in this Court are fully stated in the Opinion of the Court.
    The following are the points and authorities relied on by counsel for Plaintiff in Error:
    
      JFi/rst. The complaint of the Plaintiff in this action sets forth in terms that the Defendant, H. J. Taylor, at the time of making said note, and before the same was delivered to them or any one, did sign his name across the back of said note, to secure said note and to induce the Plaintiffs to receive the same in payment of an existing claim in their favor. (See folio 10, 14 and 17, in case.)
    In such a case, the original consideration of the note attaches to the party so signing his name, and he is held, prima facia, either as surety for consideration or as maker, original joint promissor. The facts make the party thus liable. Parson’s Mercantile Law, p. 120; 13 Johnson, 175; 7 Hill 422; Hall vs. Newcombe, Bockee Senator; Dean vs. Hall, 17 Wend. 214; Campbell vs. Butler, 12 John. 349; Pierse vs. Irvine, Stone & McCormick, 1 Minnesota Reports 369; ib. 380; ib. 383; 6 Conn. Rep. 310; 11 Conn. Rep. 440; 9 Vermont, Rep. 345; 12 ib. 219; 16 ib. 554; 17 ib. 285; 1 N. Hamp. 385; 11 ib. 385; 19 Pickering, 260; 24 ib. 264; 32 Maine (2 Red.) 339; 7 Foster (N. H) 366; 36 Maine (1 Heath) 147; ib. 265; 9 Ohio, 39; 13 ib. 328; 8 Metcalf, 504; 6 Gill, 181; 13 Ill. 682; 1 Mann. (Mich.) 428; 2 Mich. (Gibbs) 555; 18 Mo. (13 Bennett) 174; ib. 140; 9 Cushing (Mass) 104; 9 Texas, 615; 2 Cal. 485; ib. 605; 20 Mo. (5 Bennett) 571.
    
      Second. No presentment or demand or notice is n ecessary to charge a party who is liable as maker, surety or guarantor on a note. The allegation that the note was at the place of payment on the day of maturity is sufficient; and it is not material who owned or held the note at that time. 37 Maine (2 Heath) 442; 9 Cushing (Mass) 321; 2 Jones’ Law (N. C) 23; 10 N. H. 433; 18 Pickering, 63; 13 Conn. 412; 6 Humph. 270; 27 Maine; 14 Shepley, 149.
    
      Thvrd. The points made by the Judge of the Court below in his decision do not justify the sustaining of the demurrer to the complaint. Evidence is admissible under the complaint to rebut the prima facie liability of endorser, if such exists, and to show the liability of maker.
    
      Fou/rth. Incorrect conclusions in a pleading, from the facts stated, do not render a pleading bad under the Code, if the facts stated would entitle the Plaintiff to the judgment he asks.
    The following are the points and authorities relied on by the Counsel for the Defendant in Error.
    
      First. The allegation in the Plaintiffs’ Complaint that the Defendant, H. J. Taylor, by signing Ms name across the back of said notes did “ thereby become liable as joint promissof of said notes,” being an allegation of the capacity in which said Defendant is liable, if at all, is a conclusion of law; it is not well pleaded and is not a material allegation, and, therefore, is not admitted by the Demurrer.
    
      Second. The notes in this case are alleged in the complaint to have been given “ in payment of an existing claim ” in favor of the Plaintiffs and against the Defendant, White, and the Defendant in Efror cannot be held liable as surety or guarantor, for such an undertaking or contract wotrld be within the Statute of Frauds and therefore void.
    On this point see Rev. Stat. of Minnesota, Sec. 2. p. 268; Smith's Mercantile Law, 562; ib. 567 (note); Leonard vs. Vrendenberg, 8 Johns 29; Hall vs. Farmer, 2 Comst. 553; Farley vs. Cleveland, 5 Cowen 432; Hilton vs. Dinsmore, 21 Maine 410; Gold vs. Philips, 10 Johns 412; Packard vs. Richardson, 17 Mass. 139; Brown vs. Curtiss, 2 Comst. 225; Durham vs. Maurow, id. 533; Johnson vs. Gilbert, 4 Hill 128; Chandler vs. Davidson, 6 Blackf. 367; Brewster vs. Silence, 4 Selden, 207; Hall vs. Farmer, 5 Denio, 484; 3d Vol. Kent's Com. 121-23; Wain vs. Walters, 5 East 10; Scant vs. Brink, 3 Johns 210; Rogers vs. Kneeland, 10 Wend. 218; Smith vs. Ives, 15 Wend. 182; Packard vs. Wilson, id. 343; Newcomb vs. Clark, 1 Denio, 226; Bennett vs. Pratt, 4 id. 275; Kerr vs. Shaw, 13 Johns 236.
    
      Third. The notes sued upon were payable to order of Plaintiff ’s and there is no allegation in the Complaint that they ever ordered payment of the same.
    
      Fowrth. The Defendant in Error was' an endorser of said notes and as such was entitled to notice of demand and nonpayment and the complaint containing no allegation of a demand of the maker or notice to the Defendant, is therefore insufficient and the action cannot be maintained.
    In support of this point see 3d Vol. Kent's Com. 121; Story on Prom. Notes, (3d Ed.) Sec. 134; Edward's on Bills and Prom. Notes, 273; 13 Lin. and Mar. 617; 1 Jones Penn. Rep. 460; Waynam vs. Bend. 1 Campb. 175; Fear et. al. vs. Dunlap, 1 Green's Iowa Rep. 331; Hodgkins vs. Bond, 1 N. H. 284; 
      Huntington vs. Harvey, 4 Connect. 124; Jackson vs. Richards, 2 Caine, 343; Brush vs. Administrators of Reeves, 3 John 439; Tillman vs. Wheeler, 17 Johns 326; Dean vs. Hall, 17 Wend. 214; Hough v. Gray, 19 Wend. 202, Seabury vs. Hungerford, 2 Hill, 80; Hall vs. Newcomb, 3d id. 233; same case in Error, 7 id 416; Hall vs. Farmer, 5 Denio 484; same case in Court of Appeals, 2 Comst. 554; Gilman vs. Spies, 1 Barb. 158; same case in Court of Appeals, 1 Comst. 321; Ellis vs. Brown, 6 Barb. 282; Cottrell vs. Conklin, 4 Duer 45; Durham vs. Maurow, 2 Comst. 548; Jewett Ch. J.; Moore vs. Crop. et. al. 23 Barb. 534; 6 Abbotts Prac. Rep. 25.
    John B. Sanborn, Counsel for Plaintiffs in Error.
    Hale & Bond, Counsel for the Defendants in Error.
   By the Court

C. E. Blandead, J.

This case, like the case of Thompson vs. McComb, Simpson <& Co., decided at this term, involves the question of the liability to the payee of a party who puts Ms name on the back of a negotiable promissory note payable to order, jbefore the delivery thereof to the payee. In that case the question was raised by demurrer to the answer of the Defendant, and the answer being held to leave the allegations of the complaint substantially admitted, and they being sufficient to show thac the Defendant signed as a maker, the demurrer was overruled and the Plaintiff had judgment. In this case, however, the question is by demurrer to the complaint, and relieves us from the examination of any thing but its allegations. The complaint contains three causes of action, on three promissory notes, which were made by the Defendant White, £( and the Plaintiff says that at the time of the making of said note and before the same was delivered to them of any one, the Defendant H. J. Taylor did sign his name across the back of said note to secure the same, and to induce the Plaintiff’s to receive the same in payment of an existing claim in their favor,” etc. The same allegation is made in respect to the 'manner of the signing of each note by the Defendant Taylor.

The point decided in Thompson vs. McComb, Simpson & Co was that in an action by the payee of a note against a party who had simply signed Ms name across the back of the note, parol evidence conld be admitted to show tbat be bad so signed before dehvery to tbe payee and in what character be intended to become a party to tbe note: of course witnesses can swear to nothing but facts in such an inquiry, and under our system of pleading tbe facts which are to be proved must be pleaded, and tbe jury find tbe intention of tbe party from tbe facts established by tbe proof. In tbat case tbe facts in tbe complaint were fully sufficient to show tbe intention with which tbe Defendant put bis name upon tbe note to have been tbat of an original maker, and tbe answer leaving them substantially admitted, we sustained a judgment for tbe Plaintiff. Adopting tbe principle held in tbat case, and applying it to this, can tbe Defendant under tbe facts stated in tbe complaint be held as a maker of tbe note. Tbe first fact tbat is alleged is “that at tbe time of tbe making of said notes and before tbe same were delivered to tbe payees or any one, tbe Defendant, H. J. Taylor did sign bis name across the back of said notes.” This fact raises tbe presumption tbat be was aware at tbe time be signed, tbat bis act was to give tbe note credit with tbe payee, because in tbe regular course of business tbe place for a note after signature by tbe maker, is in tbe bands of tbe payee, and a request to sign a note in this irregular manner, is notice tbat tbe maker cannot get it off and tbat the payee refuses to take it without tbe additional name; a party under such circumstances signs as much for tbe benefit of tbe payee as does tbe maker, and cannot be supposed to have intended to become an endorser as tbat would not serve tbe purpose, be being if endorser, of necessity second endorser in which capacity tbe payee could not recover against him. Tbe case in 23 Barb. S. C. R. 534, which bolds tbe contrary and allows a first endorsee to recover against a second as cm endorser, on protest and notice, is simply a contradiction of reason, and tbe process by which Mr. Justice Eoosevelt arrives at bis conclusion to bold tbe Defendant as cm endorser “ a sort of finesse and shuffling game ” which is “ below tbe dignity of tbe law,” and this late case, if sustained by tbe Court of Appeals will show tbat, tbat State has by “finesse ” arrived at tbe very point i/nfact where they stood on this question before tbe case of Hall ss. Newcomb, 7 Hill, 416. He thinks tbe fact alone of tbe Defendant signing Ms name before the note had been delivered to the payee, is prima facie inconsistent with his being an accommodation endorser for the payee, and indicative that he is a maker.

The next allegation in the complaint is that the Defendant so signed the note “to secure the same, and to induce the Plaintiff to receive the same in payment of an existing claim in their favor. ” This is not an allegation of a fact it is but the purpose or intention with wMch he acted, in signing his name, which perhaps is proper should be stated, but cannot be-called a traversable fact, and is more in the nature of a conclusion deducible from facts; but is any further fact necessary to be alleged and proved, to sustain the action in the first instance beyond the signing of the note before the delivery to the payee?” It stands thus: the note unexplained, raises the presumption that the Defendant is an indorser, the Plaintiff proves that the Defendant put his name on the note before delivery, this changes the presumption into one against his character as indorsee, and shows that he put his name there to give the note credit with the payee, and that he is responsible to the payee. If there are any facts why this presumption should not obtain, we think it is for the Defendant to rebut it by averment and proof of them.

The Court below, in a very able opinion, seems fully 'to sustain the principle that parol evidence may be admitted to change the relation of the parties as they appear on the notes, but seems to think that the facts stated in the complaint are insufficient to accomplish that purpose. We only differ from him in the view above stated, that the Plaintiff having shown that the Defendant put Ms name on the note before delivery to him has made his prima facia case against him as maker, and the fact of the name being on the back instead of the face of the paper will be presumed merely to indicate the relation which he sustains to the maker as his surety.

It was not necessary to hold this rule in the case of Thompson vs. McCombs, Simpson & Co., as in that case the Plaintiff had set out all the facts of the consideration of the note, and inducing circumstances, taking the onus of the case on himself.

The judgment of the Court below is reversed and the case remanded to that Court for further proceedings.  