Brown v. Butler

99 Mass. 179

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1868
• Status: Published

Opinion

Hoar, J.

It appears from the bill of exceptions that the plaintiff offered paroi evidence to show that George Skolfield was the owner of the promissory note declared on, signed by R. S. Alexander, and payable to the order of George Skolfield on demand; and that the name of Butler & Co. was upon the back of the note when it was passed to the payee for value. It is settled by a long series of decisions in this Commonwealth that this state of facts would make Butler & Co. liable as original promisors upon the note; and that paroi evidence is competent to show it. The earlier cases are collected and commented on in the case of Union Bank v. Willis, 8 Met. 504.

The subsequent indorsement of the note to the plaintiff by the administrator of Skolfield, although written above the name of Butler & Co., could not affect the obligation of the parties already established. The cases upon which the defendant relies, and which have held that the contract which appears to be made by a party to a note, by the manner in which his name is affixed to it, cannot be varied or qualified by parol evidence, will all be found on examination to be cases in which it was held that the condition of the note when it was first delivered as a binding and valid contract is the real test; and that it is not allowable to prove by paroi that a different contract was intended from that which the note itself and the position of the several names upon it would then indicate. Clapp v. Rice, 13 Gray, 403. Stimson v. Silloway, and Powers v. Eastman, Ib. 405, note. Prescott Bank v. Caverly, 7 Gray, 217. Wright v. Morse, 9 Gray, 337. Slawson v. Boring, 5 Allen, 340. So a party who puts his name upon a note after it has once been negotiated can 5>nly be held to the contract which his signature imports, upon such a note as it was when he put his name upon it. But his signature, wherever placed, cannot change the obligation of any other parties to the note, whose signatures had been previously affixed, and whose contract had already become complete and obligatory by the delivery of it as an executed instrument. Howe v. Merrill, 5 Cush. 80.

The case most nearly like the one at bar, and very closely resembling it, is Pearson v. Stoddard, 9 Gray, 199. That was an action upon a promissory note, against Stoddard and Whithead as promisors. The note was signed by Stoddard, payable to Scott or order, and indorsed by Scott; and under the indorsement of Scott appeared the words “ Waiving demand and notice. Darius Whithead.” It was held that paroi evidence was admissible to show that Whithead put his signature upon it before it was delivered to Scott, and that he was liable as an original promisor. That case is decisive as an authority upon the question now before us; and the paroi evidence which was excluded at the trial should have been admitted.

Exceptions sustained.