
    John F. Seymour & Co. v. H. Leyman and Thomas Mickey.
    Where L. made his promissory note, payable on a future day to the order of M. H. & Co., and, before delivery to the payees, T. M., on being applied to by L., refused to become responsible thereon as a maker, but, for the accommodation of L., willing to become responsible thereon as an indorser, and that only for this purpose wrote' his name on the back of the note in blank, of all which the payees had notice; and the payees afterward transferred the note, before due, by delivery only, to those under whom the plaintiffs-claim: Held—
    1. The plaintiffs hold an equitable title only to the note, and subject to all the-equities existing between the original parties thereto.
    2. By the terms of his contract, T. M. assumed the obligations of an indorser only; and the note having never been indorsed to the plaintiffs, they can. not, on this state of facts, recover against him.
    Civil action. Beserved in the district court of Bichland county.
    On the 5th day of December, 1857, the plaintiffs filed in the-court of common pleas of Bichland county their petition,-stating, in substance:
    That on the 7th day of October, 1854, the defendant, H. Leyman, made and delivered his promissory note, in writing, to Mitchell,. Harshbarger & Co., payable to their order, for two hundred dollars in three years from date, with interest after six months; that at the time the note was made, and before it was delivered to said' Mitchell, Harshbarger & Co., the defendant, Thomas Mickey, indorsed on it his name in blank, for the consideration upon which the *note was given, and that it was then delivered to said Mitchell, Harshbarger & Co.; that shortly afterward one of the .members of said firm of Mitchell, Harshbarger & Co. wrote over-the signature of Mickey, thus indorsed in blank, a guarantee of the payment of the note, waiving demand and notice; that afterward, and before the maturity of the note, said Mitchell, Harshbarger & Co. assigned and transferred it to one B. H. Williams,, who afterward, and long before the maturity of the note, indorsed' it to the plaintiffs for a valuable consideration, and that they still own and hold it; that at the time the note was indorsed to-them, they were wholly ignorant of the fact that said guarantee had been written over the signature of Mickey after the note was-executed and delivered, and that they took the same bona fide, before maturity, in the usual course of business, and without notice;, that at the maturity of the note, it was presented to Leyman, and payment demanded, which was refused, and that thereupon the note was then regularly protested for nonpayment, and due notice-then and there given to Mickey.
    A copy of the note, with the indorsements appearing thereon, is-attached to the petition, and made a part of it.
    
      ■ Plaintiffs ask judgment against Leyman and Mickey for the amount of the note, interest, and costs of protest.
    The copy of the note referred to in the petition reads as follows:
    •“ $200. Mansfield, O., October 7,1854.
    “ Three years after date, I promise to pay to the order of Mitchell, Harshbarger & Co. two hundred dollars, at-, with interest
    .after six months, value received.
    (Signed,) “ H. Leyman.”
    The copy of the indorsements on the note reads thus :
    “ I guarantee payment on the within, and waive demand and notice.
    (Signed,) “ Thomas Mickey.”
    *“ Pay to the order of J. F. Seymour & Co. or their at.torneys.
    (Signed,) “ B. H. Williams,
    “Assignee of Mitchell, Harshbarger & Co.”
    In answer to this petition, Mickey states : That when the note was executed he refused to assume the obligations of a maker, but did assume the obligations of an indorser, and only those of an indorser, and accordingly wrote his name on the back of the note, as such indorser, without any other consideration than that of accommodating Leyman, all which the original parties to the note well knew. That said firm of Mitchell, Harshbarger & Co., or some person authorized by them so to do, fraudulently, unlawfully, and without authority, defaced altered, and changed his said indorsement of the note, by writing over his name the following words, to wit: “ I guarantee the payment on the within and waive demand :and notice.” Whereupon he prays to be dismissed with his costs.
    To this answer the plaintiffs demurred, and the questions of law thus presented wore reserved it the district court, where the case had been taken by appeal, for decision here.
    
      Curtis & Scribner, for plaintiffs.
    
      Burns & Dickey, for defendant Mickey.
   Br.inker.hoff, C. J.

It is important to notice the position which these plaintiffs occupy in relation to this note. The note is not on áts face payable to bearer, and so transferable by delivery merely, but to the order of Mitchell, Hai’skbarger & Co., that is, to Mitchell,. Harshbarger & Co., or to whomsoever they should indorse it They have never indorsed it at all. It has passed out of their-hands by delivery only; and so, through Williams, and by his indorsement, to the plaintiffs. The plaintiffs, therefore, have not a strictly legal title to the note. They are the ^holders of the note' with an equitable title only; and, under the old system of procedure could not sue upon it in their own names, but only in the names of the payees. The consequence is, that these plaintiffs can not claim the exemption from equities existing between prior parties, which the law ordinarily gives to indorsees of commercial paper before due. They stand simply in the shoes of the payees, Mitchell, Harshbarger & Co.,’and subject to all the equities existing-between the original parties to the-note, and are affected by the-notice which those payees had of the actual contract between Mickey and.Leyman. Had there been no special stipulation between Mickey and Leyman as to the responsibilities to be incurred by the indorsement of the former, or, possibly, had the-payees, at the time they received the note, been ignorant of such special stipulatibns, Mickey would, under the settled doctrine of the Ohio eases, have been held, in favor of the payees, as a guarantor of the note. Greenough v. Smead, 3 Ohio St. 415. But, the answer avers, and the demurrer admits, that Mickey, when the note was executed, “ refused to assume the obligations of a maker, but did assume the obligations of an indorser, and only those of an indorser ; ” and that this “ all the original parties to the note well knew.” And this state of facts might, if necessary, be shown by parol proof. Greenough v. Smead, supra. The plaintiffs, then being the owners in equity only of this note, are bound- by this original contract, and by the notice of it to the original jiarties, among whom are Mitchell, Harshbarger & Co., the payees.

Now what is comprehended in this contract by Mickey to be responsible as an indorser, and that only ?

Tie can not be an indorser until the note is indorsed ; and it could be indorsed only by the payees putting their names upon the back of it, and thus transfering the note to some third party. This has never been done.

In order to have made Mickey’s contract of indorsement regularly effectual, the payees should have indorsed *their names above that of Mickey, and then, on its delivery to Williams, and on Williams’ indorsement to the plaintiffs, Mickey might, on due demand and notice, have been made liable to the plaintiffs, as a second indorser, in accordance with the terms of his contract. But, on the state of facts presented in this record, we see no way in which the plaintiffs can recover, without holding Mickey to a responsibility beyond the terms and spirit of his agreement.

Demurrer to answer overruled, and cause remanded, with leave to plaintiffs to reply, or to amend petition.

Scott, Sutlirr, Peok, and G-holson, JJ., concurred.  