Erwin against Downs

Erwin against Downs. The endorsement of a promissory note, imports a guaranty by the endorser, that the makers were competent to contract in the character in which by the terms of the paper, they purported to contract. Presentment to one of two persons who, by the signature to a promissory note, purport to constitute a partnership firm, is sufficient to charge the endorser, though such person and her presumptive partner are married women. Knowledge by one who became the holder of such note before maturity, and for a valuable consideration, that the makers were married women, does not deprive him of the right to rely upon the implied guaranty of the endorser, that the makers were competent to contract, as partners, nor of the character of a bona fide holder. Appeal from the Supreme Court. The defendant was sued, as the endorser of two promissory notes, signed Waller & Burr, for the payment of $150 each, to the order of the defendant. The action was tried before a referee, who found, as facts, that Waller & Burr were two married women, viz., Rachel M. Waller and Henrietta Burr, doing business as a mercantile firm in the city of New-York. That the promissory notes were signed by said Henrietta Burr, in the name of Waller & Burr, and were endorsed by the defendant, for the benefit and accommodation of Waller & Burr., and for the business carried on by them ; that said notes were transferred to the plaintiff before maturity, for a full and valuable consideration, but with the knowledge that the names of Waller & Burr, signed to the notes, were those of two married women. He further found that when the notes became payable, the presentation was made at the place of business of the said firm of Waller & Burr, to Mrs. Burr, and payment thereof refused, but in the absence of Mrs. Waller; and notice of non-payment was duly served on the defendant. The referee reported that the plaintiff was entitled to judgment, and the Supreme Court, at general term in the first district, affirmed the judgment rendered on his report. The defendant then appealed to this court. S. F. Clarkson, for the appellant. Levi S. Chatfield, for the respondent. [MAJORITY — Shankland, J.] Shankland, J. The note was void, as against the makers, because they were married women, and incapable of contracting obligations in that form. But when the defendant endorsed the note, he impliedly contracted that the makers were competent to contract, and had legally contracted, the obligation of joint makers of the note. He also assumed the legal obligation, in most respects, of the drawers of the bill. The fact, known to the plaintiff at the time he took the note, that the makers were married women, did not deprive him of the character of a bona fide purchaser. Nor does the payee’s knowledge that the drawee is a married woman, discharge the drawer in case of non-payment of the bill by the drawee. Nor is the endorser discharged, though the name of the maker is forged. (1 Comst., 113.) The fact is not found that the plaintiff was aware the note was accommodation paper. The plaintiff was a bona fide purchaser within the law merchant. Neither the complaint, nor the finding of the referee, tell us who transferred the notes to the plaintiff. The legal presumption is, that he received them from some legal holder in due course of business. The judgment should be affirmed. Brown, J., delivered an opinion to the same effect. All the other judges concurring, Judgment affirmed.