Kamm v. Holland

2 Or. 59

• Court: Oregon Supreme Court
• Decided: September 15, 1863
• Status: Published

Opinion

Prim, J.

In this case we are called upon to determine in what capacity a third party is liable who indorses his name in blank on the back of a negotiable paper before it is delivered to the payee, or indorsed by him. Here, F. S. Holland so indorsed his name, with the addition of the word “ security.” It is insisted by appellant that, in so doing, he became liable as maker or guarantor of the note, and cites many respectable authorities from Massachusetts and other States in support of that position.

Contra. — It is insisted by respondent that in so writing his name, he only became liable as indorser on the usual condition precedent of demand and notice, and cites and relies upon authorities of equal number and force from New York and other States. As this is the first time that this question is here for adjudication, we might decide it in either way under the adjudications in other States as cited, and have an abundance of authority to sustain oúr decision. It is only necessary for us to elect which rule we will adopt. We are of the opinion that the weight of authority, as well as of reason and sound policy, are in favor of the rule as adopted in New York. That is the great commercial State, and we think it has adapted the better rule of commercial law, which is, where a party places his name in blank on the back of a negotiable paper before delivery to payee, he does not thereby become liable as maker or guarantor, but as an indorser; and as such is entitled to due demand and notice. (See Hall v. Newcomb, 7 Hill, 416, and cases there cited; 6 Barbour, 282; 15 Maryland R., 291; Iowa, 473; Edwards on Bills, 273-274.) Then the Circuit Court was correct in holding that F. S. Holland was not liable as maker or guarantor; and, not having been -charged by demand and notice, he could not be held as indorser.

Judgment is affirmed.