Douglas v. Rumelin

266 P. 624, 264 P. 852, 125 Or. 261, 1928 Ore. LEXIS 140

• Court: Oregon Supreme Court
• Decided: February 28, 1928
• Status: Published

Opinions

COSHOW, J.

This court has determined that a writing on the back of a note, of the tenor involved in the instant case, constitutes an indorsement with additional liability and is not a collateral contract to guarantee the payment of the note only: Cady v. Bay City Land Co., 102 Or. 5 (201 Pac. 179, 21 A. L. R. 1367). See, also, National Bank of the Republic v. Price, 65 Utah, 57 (234 Pac. 231, 234).

The indorsement in the instant case was a blank indorsement and was made before delivery of the instrument. This principle is further discussed at g’reat length in Case v. McKinnis, 107 Or. 223 (213 Pac. 422, 32 A. L. R. 167). It is there held that an indorsement in blank, similar to the writing here involved, before the delivery of a note, makes the indorsers liable as indorsers, not as makers or guarantors only. This was the holding of this court as early as 1894 when Wade v. Creighton, 25 Or. 455 (36 Pac. 289), was decided.

Parol evidence is not admissible to vary the liability assumed by defendants as shown by the written instrument itself: Case v. McKinnis, above. The instrument having been set out in full in the complaint, it is the duty of the judge presiding at the trial to define the liability of the maker and the indorsers thereon.

There was a question of fact involved and that was whether or not C. E. Eumelin was authorized to subscribe the name of Ashley & Eumelin to the indorsement. Their liability, if they did sign the indorsement, is fixed by statute. It follows that the court erred in directing a verdict in favor of defendant Ashley.

The judgment is reversed and the cause remanded for further proceedings in harmony with this opinion.

Eeversed and Eemanded.

Eand, C. J., and McBride and Eossman, JJ., concur. For the petition, Messrs. Platt, Platt, Fales & Smith and Mr. George Black, Jr. No appearance contra.