Hudson v. Wolcott (39 Ohio St. 618, 1884)

McIlvaine, J.

We have considered two questions in this case — 1- Was evidence improperly admitted on the part of defendant 1 2. Did the court err in the charge to the jury ?

The issue to which the evidence referred to relates was, in substance, as to the relation between the parties of indorser and indorsee. The controversy was as to the existence of a contract of indorsement, and not as to the terms of the contract. That the name of the defendant was on the back of the note at the time he transferred it to the plaintiff was not disputed, nor was it disputed that the name was written there long before the transfer and for a purpose other than such transfer. That the presence of defendant’s name in blank upon the -back of the note at the time of its sale and delivery to the plaintiff, is prima facie evidence of a contract of indorsement is undoubtedly true, nor do we think the prima facie case thus made is wholly overcome by showing that the name was previously written for another purpose, for the reason that if both parties knew of the existence of the previous indorsement it is presumable that it was adopted as a present indorsement, and as evidence of the contract of sale and transfer, but prima fa,cie only. Surely, as between the parties, it would be unjust to conclude the apparent indorser contrary to the true meaning and intention of the parties. And -we can see no good reason for holding that the declarations and conversation of the parties at the time, and parts of the res gesta, are incompetent to prove the true meaning and intention of the parties. Morris v. Faurot, 21 Ohio St. 155.

The plaintiff requested the court to charge the jury, that “if the jury found the facts, as claimed by the plaintiff to be true, then there was a sufficient demand and notice, under the circumstances, to entitle the plaintiff to recover,” which the court refused.

The court also refused to charge the following, as requested :

“If the jury find that Wolcott, the maker of the note described in the petition, was insolvent, and that Burt, the defendant, when he transferred it to plaintiff for a valuable consideration, had made an effort to collect it of Wolcott and had failed; and if, when he transferred it, he said to the plaintiff, pointing to his indorsement, this is the security I give you for the note, and the plaintiff said I will take it if Wolcott, the maker, says it is all right, and that he would pay it, or words to that effect, and then both plaintiff and Burt went to where Wolcott, the maker, was, and the plaintiff had a conversation with Wolcott, asking him if he could pay the note, and Wolcott, in substance, said he thought he could pay it soon, or within about thirty days, and the plaintiff communicated to Burt this conversation, and said he would take the note, and then Burt handed him the note, being on the same day and on the occasion of the visit of the plaintiff and Burt to Wolcott, to ascertain whether the plaintiff would take the note of Burt; that this state of facts was such demand of payment of the maker by plaintiff and notice to Burt of non-payment as would make him liable as indorser of the note to plaintiff without further demand and notice.”

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