
    Kimbroe vs. Lamb.
    Where the payee of a note endorsed it in blank, with an agreement, that the endorsee should fill up the endorsement, and he did fill it up, waiving demand and notice: Held, that it was a question of fact for the jury to determine, whether it was the in* tention of the payee that the defendant should have the power so to fill it up. If it was his intention, he was then bound by the endorsement as filled .up.
    Webb executed and delivered his promissory note for $333 to Lamb. Lamb sold the note to Kimbroe, and endorsed it in blank and delivered it to him, with some understanding in reference to filling up the blank endorsement.
    Kimbroe filled up the endorsement, .waiving demand and notice. When the note matured he made no demand, and gave no notice, and Webb having failed to pay it, he sued Lamb in debt in the circuit court of Henry county.
    The cause came on for trial at the September term, 1840, before judge Harris, and proof was introduced by the defendant, showing that he endorsed the note in blank, and that it was filled up waiving demand and notice by the assignee, and pi-oof was introduced by the plaintiff, going to show that Lamb authorized Kimbroe to fill it up as he thought proper.
    Harris, judge, charged the jury, that “they could not enquire into the intention of the parties at the time of the sale of the note, and that if the defendant agreed with the plaintiff, that the assignment should be filled up by plaintiff, and it was filled up waiving demand and notice, that defendant would not be liable thereby; that if defendant in writing had authorized an agent to fill up the assignment as plaintiff thought proper, that defendant would not be bound if the agent filled it up (agreeable to the requirement of the plaintiff) waiving demand and notice, the waiving demand and notice being no part of an assignment, but a separate contract. That defendant would not be liable for the payment of this note, unless there was an express agreement that demand and notice should be waived, or unless demand and notice had been proved.”
    The jury rendered a verdict for the defendant. Plaintiff appealed in error.
    J. Williams, for the plaintiff.
    
      McMeans, for the defendant.
   TuRLEY, J.

delivered the opinion of the court.

The defendant is a payee of a note executed by John W ebb, which he endorsed to the plaintiff. The endorsement was in blank, and there is proof tending to show, that at the time it was made, the defendant gave the plaintiff authority to fill it as might best suit his interest. It was filled waiving demand and notice. The court charged the jury, “that they could not enquire into the intention of the parties at the time the note was sold; and that if defendant agreed with the plaintiff that the assignment should be filled up by him as he saw proper, and it was filled up waiving demand and notice, the defendant would not be bound thereby.” This charge is erroneous; if defendant intended to give plaintiff the power to fill the endorsement waiving demand and notice, he is as much bound by it as if he had done it himself, and the jury ought to have been permitted to determine the fact. This they were not permitted to do. The judgment will, therefore, be reversed, and the case remanded for a new trial.  