Wait v. Thayer

118 Mass. 473, 1875 Mass. LEXIS 406

Opinion

Wells, J.

Warner being a member of the firm whose indorsement appeared upon the note, the fact that he was also the maker of the note in his individual capacity did not give rise to any conclusive presumption that it was an accommodation indorsement, or that he negotiated the original loan and received the money for his own private use, and not as a copartner.

For the same reason the insertion by Warner of the date and rate of interest at the time of negotiating the loan, being within the apparent authority of a copartner, was not manifestly unauthorized.

The court could not therefore properly rule, as matter of law, that the form of the note and the fact that it was in the hands of Warner, who, upon its face, was the party primarily liable upon it, or the changes made in the note by Warner, and the other circumstances attending its negotiation, of themselves constituted notice or conclusive proof of notice to the plaintiff that the indorsement was for Warner’s accommodation, or that Warner had not authority to bind all his copartners by his acts in regard to it. It was a question of fact for the jury, upon all the circumstances of the case; and it was submitted to them upon instructions that appear to us to have been correct, appropriate and sufficiently favorable tc the defendant.

Exceptions overruled.