
    Hugh Riley vs. George W. Gerrish.
    If a party, not the indorsee, places his name in blank on a note, before it is nego tiated or passed, the holder may fill up the blank so as to charge such indorse] as a joint and several promisor and surety.
    In a suit by the payee of a promissory note, against one who indorsed it in blank at the time it was given, parol evidence is admissible to show the real nature of the transaction.
    This was an action on a promissory note, and came before this court on an agreed statement of facts.
    In December, 1846, the defendant, being indebted to the plaintiff, procured two notes, of five hundred dollars each, payable in one year, with interest semiannually, for value received, to the order of the plaintiff, dated December 16, 1846, and signed by William Canney. Each note was secured by a mortgage made by Canney to the plaintiff.
    The plaintiff offered C. L. Hancock, Esq., then counsel foi the defendant, whose testimony it is agreed would be as follows: —
    That, on the 22d of December, the parties met at his office, for the purpose of adjusting the plaintiff’s claim against the defendant; that the defendant wrote his name in blank on the back of each of the notes in question; that the witness, who was the defendant’s counsel, instructed the defendant that this would make him an original joint and several promisor, and the defendant thereupon wrote over his name the words “ as indorser; ” that the plaintiff, on seeing the notes, refused to take them in this form, with the words “ as indorser ” on them, but wanted them as they were' before; that the witness instructed the defendant, that erasing the words “ as indorser ” would make him liable as an original joint and several promisor, as before; that, after the plaintiff’s refusal to take the notes with the words “ as indorser ” on them, and after the instructions of the witness to the defendant, the words “ as indorser ” were erased, and the notes and mortgages were then delivered to and accepted by the plaintiff; that, after the business was consummated, and the plaintiff had received the notes and papers, but before he had left the witness’s office, the plaintiff wrote his name over the erasure. This was in presence of the defendant, but nothing was said about it between the plaintiff and the defendant.
    At the maturity of the notes, the plaintiff put them in bank for collection, but they were returned.
    The defendant objects that he is a second indorser, and that it is not competent for the plaintiff to give evidence of the fact that it is agreed Mr. Hancock would testify to, to show that the defendant was a principal promisor, and is liable in this action.
    If the court are of opinion that the facts are admissible in evidence, and, when admitted, will establish the plaintiff’s claim, judgment is to be entered for the plaintiff; otherwise, he is to be nonsuit.
    
      A. B. Ely, for the plaintiff.
    The facts are admissible in evidence. 1 Greenl. Ev. §§ 277, 285-288; Austin v. Boyd, 24 Pick. 64; Richardson v. Lincoln, 5 Met. 201. They establish the plaintiff’s claim. Austin v. Boyd; Richardson v. Lincoln, as above cited; Samson v, Thornton, 3 Met. 275; Union Bank of Weymouth & Brain-tree v. Willis, 8 Met. 504.
    
      H. F. Duran*, for the defendant.
    The admission of Hancock’s testimony would be in violation of the established rule of evidence, that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument. 1 Greenl. Ev. § 275. The case of Austin v. Boyd, 24 Pick. 64, was widely different from the present, and was not within the rule of contemporaneous evidence; the indorsement by the payee, in that case was not made at the same interview as the indorsement by Boyd, but a month later, when Boyd was not present.
    The facts, if admissible, prove Gerrish to be a second in-dorser, and not an original promisor. Pierce v. Mcmn, 17 Pick. 244.
   Shaw, C. J.

This is a suit on one of those irregular indorsements of a negotiable note, not indorsed by the payee but by a third person. Hunt v. Adams, 5 Mass. 358; 6 Mass 519; 7 Mass. 518.

The history of these notes is given in the case of The Union Bank of Weymouth & Braintree v. Willis, 8 Met. 504, in which Mr. Justice Hubbard takes a full review of the cases in Massachusetts.

However much it may be regretted that this irregularity was originally sanctioned, it must now be admitted, that the law is well settled in this state, that if a party, not the indor-see, places his name in blank on a note, before it is negotiated or passed, and so before it has acquired the character of a contract, this will warrant the holder in filling up the blank, so as to charge such indorser as a joint and several promisor and surety. The fact of intrusting such blank with another is evidence of an authority to fill up something over it, and the actual authority to fill it up in any particular form may be proved by evidence aliunde.

This power of filling up a blank is not arbitrary, but depends upon proof of the real negotiation; and the court will permit the blank to be filled in conformity with the authority as proved. Hunt v. Adams, ubi. supra.

And if filled up, in the first instance, in a manner not conformable to the truth, he will be permitted to correct it and fill it up anew. Josselyn v. Ames, 3 Mass. 274; Austin v. Boyd, 24 Pick. 64; Nevins v. De Grand, 15 Mass. 436.

Another question is made in the present case, whether parol evidence is admissible.

A' distinction is to be made here between the case of á holder of a note not dishonored, taken in the due course of business and without notice of the facts affecting the indorsement, and notes when these facts are otherwise.

Every presumption is to be made in favor of the regularity of such note; and, for the sak. of protecting negotiable instruments, it shall not be impeached by parol evidence, or any other evidence aliunde, arising from transactions between prior parties. Putnam v. Sullivan, 4 Mass. 45.

But in a case like this parol evidence is admissible : —

1. Because it is between original parties, and the real transaction may be proved; as, for instance, that it was an accommodation note, made for the accommodation of the indorser. Wiffen v. Roberts, 1 Esp. R. 261.

2. It presents a latent ambiguity. A blank name means nothing of itself; there must be evidence aliunde, to show what was the object and purpose of the indorser in thus writing his name in blank and delivering it to another, in order to give it effect.

3. Before the indorsement is filled up, the respective liabilities of the parties rest on a presumption of fact only; and' this may be rebutted by parol evidence. Austin v. Boyd, 24 Pick. 64.

If there be an exception in favor of indorsees and holders of negotiable notes, taken in due course of business, without notice, this note was not so taken, and, therefore, is not within the exception.

Then, as to the facts as proved by the evidence. The transaction between these parties had closed. The defendant, when he put his name on the note, was advised that he would thereby charge himself, whereupon he added the words “ as indorser; ” then the plaintiff’ declined to take it.

The defendant, after being advised of the effect, struck out the words “ as indorser,” and delivered it as a blank indorsement, as it was at first, with full knowledge of its legal effect Within the authority of the cases cited, we think the defendant became liable as promisor. Judgment for the plaintiff.  