they signed individually, although adding words the instrument sued on by the name signed theredescriptive of their office.1 13 [§ 1147] f. Corporate Paper.14 Unless required by statute, the authority of a domestic corporation to make commercial paper need not be expressly averred.15 To charge a corporate liability the complaint must contain averments sufficient to show that the instrument in question was the act of the corporation through its duly authorized officers; 10 otherwise it will be taken to be the individual obligation of those whose names are signed to it.17 [§ 1148] g. Description and Identification of Maker. The signer of commercial paper may be charged by the style in which his name appears on the instrument," 18 or he may be designated by his true name and an allegation made that he executed [a] Acknowledgment of indebtedness in name of estate. A declaration in assumpsit alleged that defendant made his promissory note. commonly called a "duebill," by which he acknowledged himself indebted to plaintiff by the name of "the estate of Thos. Eager, deceased," plaintiff being the administrator of said estate, in the sum of, etc., and then and there delivered the same to plaintiff. It was held that the declaration was good, and that a writing agreeing with that described in the declaration was admissible evidence for plaintiff. McKinney v. Harter, 7 Blackf. (Ind.) 385, 43 AmD 96. [b] Note made by intestate.-A declaration in one of the short forms authorized by the code against the administrator of a person named did not expressly state that he was sued as administrator, but alleged that he was indebted to plaintiff on a promissory note, a copy of which was annexed, and the copy annexed was that of a joint note signed by decedent and another. It was held that such a declaration on its face, in the absence of anything to show that the latter was still alive, set forth a cause of action at law against defendant, as administrator of decedent. Jennings v. Wright, 54 Ga. 537. 13. Blackstone Nat. Bank v. Lane, 80 Me. 165, 13 A 683 (holding that an action is against a defendant individually, although he is described in the note and writ "as trustee," etc., the latter words being merely descriptio persona); Rupert v. Madden, 1 Chandl. (Wis.) 146. [a] Individual liability-One who signs a draft as executor is liable personally; and if he is sued as executor, but there is a prayer for general relief, judgment will be given against him individually, if on the trial his liability as such is established. Russell v. Cash, 2 La. 185. to.19 An addition to the maker's name which has no legal effect need not be noticed.20 If the party used initial letters or contractions before his surname, he may be so described, and a statement of his name in full is unnecessary;21 but it seems that he should be identified as the same person.2 22 [§ 1149] 13. Exhaustion of Remedies against Maker. In some of the states, in order to charge an indorser or an assignor of paper not governed by the law merchant, it is a prerequisite that the holder should first exhaust his remedies against the maker.23 Accordingly in those states, in declaring against an indorser or an assignor, it is necessary to allege that suit has been prosecuted against the of a corporation, by one signing him- | Soc. v. Burnham, 111 Cal. 343, 43 P 971. self as "business manager,' an officer Colo.-Peddie v. Donnelly, 1 Colo, unknown to the law, which states that the notes "were made, executed and delivered by the corporation," sufficiently alleged the authority of the signer to act for the corporation. Topeka Capital Co. v. Remington Paper Co., 61 Kan. 6, 59 P 1062, 57 P 504. [b] Exhibition of note.-An averment that defendant, a corporation, executed the note sued on is supported by the exhibition of a note containing a promise of the company to pay and signed by its secretary and general manager. Wagner v. Brinckerhoff, 123 Ala. 516, 26 S 117. [c] Intention.-An averment that the note in suit was executed for an indebtedness against a school township, taken in connection with the articles for which it purported to have been given, sufficiently shows that it was the intention of the parties to bind the school and not the civil township. Moral School Tp. v. Harrison, 74 Ind. 93. 17. Tama Water Power Co. V. Ramsdell, 90 Iowa 747, 52 NW 209, 57 NW 631 (holding that an averment that defendants made the note in suit is sufficient to charge them personally, although the instrument bears the impression of the seal of the corporation of which they are officers). [a] A complaint alleging that the A Co., B, and C, by their joint note promised to pay, etc., and by reference making a part thereof the note in question commencing "we," etc., promise and signed, "A Co., B, Pres. and C, Man.," states a cause of action against B and C as individuals. Albany Furniture Co. v. Merchants' Nat. Bank, 17 Ind. A. 531, 47 NE 227, 60 AmSR 178. [b] A petition alleging that defendant, having authority, drew a bill on behalf of a corporation and for its benefit, states no right of action against defendant individually. Hall v. Cook, 17 SW 1022, 17 KyL 606. [c] The signers of a note reading, "the directors... promise, etc.," to whose signature no official designation is attached, are properly de [b] Claim against deceased maker. -In Bowman v. Citizens' Nat. Bank, 25 Ind. A. 38, 56 NE 39, the overruling of a demurrer interposed by an administrator to a complaint, in an action on a note initiated by a claim against his intestate, as maker, was held not to constitute reversible er-clared against as individuals. Mcror, since the administrator was a party by operation of law. 14. See also generally Corporations [10 Cyc 1022 et seq]. 15. Montague v. Millstone Turnp. Church School Dist. No. 3, 34 N. J. Kensey v. Edwards, 88 Ky. 272, 10 SW 815, 21 AmSR 339, 3 LRA 397. 18. Ú. S.-Bigelow v. Chatterton, 51 Fed. 614, 2 CCA 402. Ala.-Comer v. Jackson, 50 Ala. 384; Alabama Coal Min. Co. v. Brain 421. Conn.-Salomon V. Hopkins, 61 Conn. 47, 23 A 716. Ill.-Becker V. German Mut. F. Ins. Co., 68 Ill. 412; Duncan v. McAffee, 3 Ill. 559; Graham v. Eiszler, 28 Ill. A. 269. Ind. Gaskin v .Wells, 15 Ind. 253. N. H.-Grafton Bank v. Flanders, 4 N. H. 239. Vt.-Miner v. Downer, 20 Vt. 461. Wis.-Jewett v. Whalen, 11 Wis. 124. Eng.-Levy v. Webb, 9 Q. B. 427, 58 ECL 427, 115 Reprint 1336. has [a] Different spelling.-It been held that plaintiff correctly declared on the note in suit, when he alleged that it was made by Cephas Gaskin, by the name of Cephas Gasten. Gąskin v. Wells, 15 Ind. 253. [b] Unauthorized signing.-Where one person signs the name of another to a negotiable instrument, without any authority so to do, he may be sued thereon under an allegation that he executed the instrument by the name which he wrongfully signed. Grafton Bank v. Flanders, 4 N. H. 239. 20. Riggs v. Andrews, 8 Ala. 628 (holding that, where a note was executed by one partner in the name of a firm which was then in dissolution, and which was described in the note as in liquidation, it is sufficient, in a declaration by an indorsee against the indorser, to describe the note as made by the firm); Fairchild v. Grand Gulf Bank, 6 Miss. 597. 21. Richardson v. Opelt, 60 Nebr. 180, 82 NW 377; Andrews v. Talbot, 13 U. C. Q. B. 188. [a] One christian name in full.The full christian names of one who signs by one of such names in full and by an initial as to the other need not be stated. Lomax v. Landells, 6 C. B. 577, 60 ECL 577, 136 Reprint 1374; Upper Canada Bank v. Gwynne, 7 U. C. Q. B. 140; Mair v. Jones, 7 U. C. Q. B. 139; Dougall v. Reafisch, 6 U. C. Q. B. 391; Commercial Bank v. Roblin, 5 U. C. Q. B. 498. 22. Humboldt Sav., etc., Soc. v. Burnham, 111 Cal. 343, 43 P 971 (holding that, where the note signed by the makers by their initials is set out as a part of the complaint, an allegation that defendants, giving their full names, made it is a sufficient identification). [a] Alias.-The description of a defendant, as "J. M. Duncan, alias James M. Duncan," is sufficient. Duncan v. McAfee, 3 Ill. 559. [b] Statutory form.-A complaint is good where it is in the prescribed form and contains a copy of the note showing by whom it was executed. Jackson v. Burgert, 28 Ind. 36. 23. See supra 668. presentment, demand, refusal to pay, and notice thereof to the indorser is sufficient without an averment that suit was instituted against the maker within a prescribed time, where the liability of the indorser may be fixed in either way.31 maker, or to state facts excusing the bringing of such suit.25 Thus, although no suit was instituted against him, inability to proceed against the maker because of his nonresidence 26 or insolvency,27 or because of coverture,28 of a request by the assignor or indorser not to sue,29 or of an express promise to At first term of court. If the action against the pay by the party sought to be charged,30 when ap- maker is not brought at the first term of court, propriately averred, will sustain the action against where so required by statute, an excuse for the laches an indorser or an assignor. So an allegation of must be pleaded.3 32 However, it is not necessary to 24. U. S.-Dent v. Ashley, 7 F.18 SW 310; Yale v. Ward, 30 Tex. 17; Cas. No. 3,809b, Hempst. 55. Fisher v. Phelps, 21 Tex. 551; Elliott v. Wiggins, 16 Tex. 596; Mullaly v. Ivory, (Tex. Civ. A.) 30 SW 259. Ariz.-Daggs v. Phoenix Nat. Bank, 5 Ariz. 409, 53 P 201. Conn.-Rhodes Conn. 1. v. Seymour, 36 Ala.-Brown V. Fowler, 133 Ala. 310, 32 S 584; Winter v. Coxe, 41 Ala. 207; McDougald v. Rutherford, 30 Ala. 253; Lindsay v. Williams, 17 What are excuses see supra §§ Ala. 229; Fulford v. Johnson, 15 Ala. 676-681. 385; Murphy V. Gee, 9 Ala. 276; [a] Not necessary in action on Howze v. Perkins, 5 Ala. 286; Ham-warranty. The petition in an action mett v. Smith, 5 Ala. 156; Wood- on a note, by a purchaser thereof, ward v. Harbin, 1 Ala. 104; Ivey v. against the maker and the transSanderson, 6 Port. 420; Alday v. feror, alleged that plaintiff purJamison, 3 Port. 112. chased the note from the transferor without notice of the facts showing that it had been paid and a vendor's lien securing it discharged, and that the transferor warranted the genuineness of the note and of the vendor's lien securing it and prayed for judgment against the transferor, if the note had been paid and the lien satisfied. It was held that the transferor was primarily liable to plaintiff for the consideration paid for the note, in the event that his representation that it was secured by a vendor's lien was not true, and that an allegation of the insolvency of the maker was not necessary. Harris v. Cain, 41 Tex. Civ. A. 139, 91 SW 866. Ill. Sherman v. Smith, 20 Ill. 350; Crouch v. Hall, 15 Ill. 263. Ind.-Mitchell v. St. Mary, 148 Ind. 111, 47 NE 224; Brown v. Summers, 91 Ind. 151; Huston v. Centerville First Nat. Bank, 85 Ind. 21; Frybarger V. Cockefair, 17 Ind. 404; Hanna v. Pegg, 1 Blackf. 181. Ky. Anderson v. Penick, 66 SW 732, 23 KyL 2146; Elliott v. Threlkeld, 16 B. Mon. 341; Spratt v. McKinney, 1 Bibb 595; Traders Deposit Bank v. Chiles, 14 KyL 617; Cecil v. Simpson, 10 KyL 404 (holding that it is not sufficient, in an action by the assignee of a note against the assignor, to allege that the assignee instituted suit and prosecuted it with due diligence; the facts showing what he did should be averred); Hampton v. Moss, 5 Ky. Op. 69. Mich.-Bosman v. Akeley, 39 Mich. 710, 33 AmR 447. 26. Miller v. McIntyre, 9 Ala. 638; Bernitz V. Stratford, 22 Ind. 320; Hart v. Harrison Wire Co., 91 Mo. 414, 4 SW 123; Costin v. BurtonLingo Co., 57 Tex. Civ. A. 634, 123 SW 177. [a] "Left the state."-An allegation that since the indorsement and before maturity of the note sued on the maker "left the state" is not Col-equivalent to an averment that the maker became a nonresident. Holton v. McCormick, 45 Ind. 411. Mo.-Simmons v. Bret, 35 Mo. 461; Wimer v. Shelton, 7 Mo. 266; lins v. Warburton, 3 Mo. 202. N. J.-Disborough V. Vanness, 8 N. J. L. 231. Tex.-Hutchins v. Flintge, 2 Tex. 473, 47 AmD 659; Mullaly v. Ivory, (Civ. A.) 30 SW 259. [b] Nonresidence at accrual of right of action.-(1) An allegation that the maker and another indorser "are nonresidents, and have been for a long time," is insufficient because failing to state that they were nonresidents when the right of action accrued. Mullaly V. Ivory, (Tex. Civ. A.) 30 SW 259. (2) An averment that the maker at the time of and has since continued so to be and that the fact of his nonresidence was at the time unknown to plaintiff is insufficient. Fulford v. Johnson, 15 Ala. 385. [a] Time of issuing execution.-A declaration stating that the term of the court at which plaintiff obtained judgment against the maker was adjourned on September 7, and that a fi. fa. issued on the judgment on the twenty-first of the same the indorsement was a nonresident month shows prima facie sufficient diligence in taking out execution. Clark v. Spears, 8 Blackf. (Ind.) 302. [b] Request of indorser to assist in prosecution.-Where, in an action against the maker, the indorser is notified of its pendency and of the plea interposed and is requested to appear and assist in the prosecution of the suit, but fails so to do, an action may be maintained against him without notice of the result of the action or any demand on him to pay the loss sustained. Hazzard v. Citizens' State Bank, 72 Ind. 130. [c] Record of action against maker.-In a suit by the assignee of a note against his assignor, alleging that, in an action on such note by the assignee against the maker, the latter had judgment, the complaint need not contain a copy of the pleadings, proceedings, and judgment in such action. White V. Webster, 58 Ind. 233. [c] Diligence. An averment excusing the institution of an action against the maker "in the county, where he ordinarily resided, but that he could not, on diligent search and inquiry, there, and elsewhere, in said State, be found," is not a sufficient averment of diligence. Fulford v. Johnson, 15 Ala. 385. 27. Ala.-Miller v. McIntyre, 9 Ala. 638. Ill.-Phillips V. Webster, 85 Ill. 146; Cowles v. Litchfield, 3 Ill. 356; Harmon v. Thornton, 3 Ill. 351. Ind. Smythe V. Scott, 124 Ind. 183, 24 NE 685; Schmied v. Frank, 86 Ind. 250; Huston V. Centerville First Nat. Bank, 85 Ind. 21; Binford v. Willson, 65 Ind. 70. Ky.-Burks v. Ritter, 10 KyL 232. 25. Winter v. Coxe, 41 Ala. 207; Mo.-Hart v. Harrison Wire Co., Langdon v. Williams, 22 Ala. 681; 91 Mo. 414, 4 SW 123; Simmons v. Howze v. Perkins, 5 Ala. 286; Wood- Belt, 35 Mo. 461. ward v. Harbin, Ala. 104; Holton v. McCormick, 45 Ind. 411; Bernitz v. Stratford, 22 Ind. 320; Hanna v. Pegg, 1 Blackf. (Ind.) 181; Hart v. Harrison Wire Co., 91 Mo. 414, 4 SW 123: Kampmann v. Williams, 70 Tex. 568, -Where the insolvency of the maker of a promissory note is alleged as the ground of an action by the assignee against the assignor, evidence of the appointment of a receiver is admissible without an averment to that effect, it not being necessary to plead evidence. Phillips v. Webster, 85 Ill. 146. [b] Wholly and notoriously insolvent.-(1) In Indiana plaintiff must follow the wording of the statute and allege that the maker is wholly insolvent, where he relies on such insolvency as an excuse for not having sued the maker. Smythe V. Scott, 106 Ind. 245, 6 NE 145; Huston v. Centerville First Nat. Bank, 85 Ind. 21. (2) In Texas it is held that the maker's insolvency must be alleged to have been notorious. Fisher v. Phelps, 21 Tex. 551. [c] Time of insolvency.-(1) The insolvency must be alleged to have existed at the time when suit should have been brought. Fisher v. Phelps, 21 Tex. 551. (2) Under the Texas statute it must be alleged that the maker was insolvent at the time of the maturity of a note in order to charge the indorser, where such insolvency is relied on as an excuse for not suing the maker. Jones v. Ritter, 32 Tex. 717. [d] Negativing transfer to assignee in bankruptcy-A complaint against an indorser in which the ground of recovery is the insolvency and not the bankruptcy of the maker need not show that a sufficient amount of property to pay the note or the principal part thereof was not transferred to the assignees in bankruptcy of the maker. Hayne v. Fisher, 68 Ind. 158. 28. Huston V. Centerville First Nat. Bank, 85 Ind. 21. 29. Brown v. Fowler, 133 Ala. 310, 32 S 584; Huston v. Centerville First Nat. Bank, 85 Ind. 21; Sims v. Parks, 32 Ind. 363. 30. Brown v. Fowler, 133 Ala. 310, 32 S 584. [a] Promise with knowledge of delay.-A declaration alleging that with knowledge of delay in suing the maker defendant, an indorser, expressly promised to pay need not also excuse a want of diligence in proceeding against the maker. Walker v. Henry, 36 W. Va. 100, 14 SE 440. [b] Unnecessary averments.—A complaint is not objectionable because, after sufficiently averring a request not to sue and a promise to pay, it further alleges a suit against the maker and the return, unsatisfied, of a judgment recovered therein. Brown v. Fowler, 133 Ala. 310, 32 S 584. 31. Fisher v. Phelps, 21 Tex. 551. 32. Lindsay v. Williams, 17 Ala. 229; Markel v. Evans, 47 Ind. 326; Herald v. Scott, 2 Ind. 55; Kampmann v. Williams, 70 Tex. 568, 8 SW 310; Elliott v. Wiggins,.16 Tex. 596; Buster v. Woody, (Tex. Civ. A.) 146 SW 689; Beauchamp v. Chester, 39 Tex. Civ. A. 234, 86 SW 1055; Caldwell v. Byrne, (Tex. Civ. A.) 30 SW 836; Mullaly v. Ivory, (Tex. Civ. A.) 30 SW 259. Tex.-Fisher V. Phelps, 21 Tex. [a] Illustrations (1) In an ac551; Eagle Lake First Nat. Bank v. tion against the indorser of a note, Robinson, (Civ. A.) 124 SW 177; an averment that the court to which Costin v. Burton-Lingo Co., 57 Tex. the suit was brought was the first Civ. A. 634, 123 SW 177. court to which it could be brought, [a] Evidence need not be pleaded."after the plaintiff by prompt and allege that the action was brought at the first term of court, as the court will take judicial notice of that fact.33 Joint and joint and several obligations. To charge the estate of a deceased joint obligor it is necessary to allege that plaintiff has exhausted his remedy against the survivor;34 but such allegation is not necessary where the obligation is joint and several,35 as in the case of maker and indorser of a note.30 [ 1150] 14. Foreign Laws. Pleadings and evidence are governed by the law of the place where the suit is brought;37 but the lex loci contractus ordinarily furnishes the rule of decision and governs the construction of, and the liability on, the instrument,38 if pleaded; but it must be pleaded for this purpose, otherwise the lex fori will control.39 held that the failure of such a note to contain a stipulation for interest is remedied by recitals in a mortgage which was given to secure it, where both instruments are attached to a bill for foreclosure.47 Special agreement. When by agreement as permitted by statute a note bears interest at a rate greater than the ordinary legal rate, a breach of the agreement must be assigned,18 and if the promise is to pay more than the ordinary rate after maturity by way of penalty there must be an allegation of special damage." The note and the interest which has accrued after maturity constitute but a single cause of action.50 Illegal rate. If the instrument provides for illegal interest it may be declared on as without interest.51 Interest as damages. Where the instrument contains no stipulation as to interest, it is unnecessary to demand the interest that is due or to negative its payment. The debt alone should be declared for, and interest is recoverable as damages for its detention.5 52 Foreign laws. Where the rate of interest sought to be recovered is governed by the laws of a foreign state where the note was made, such laws must be pleaded in the same manner as any other necessary fact,53 and with reasonable certainty, as well as 48. Clary v. Morehouse, 3 Ark. Omission of stipulation. A note containing immaterial omissions in the stipulation respecting interest may be declared on according to the evident intention of the parties thereto;46 and it has been diligent inquiry ascertained that the | Clellan v. Morris, Kirby (Conn.) 145. maker resided" in the county where the suit was brought, is bad on demurrer, as the excuse for want of diligence is not distinctly averred. Lindsay v. Williams, 17 Ala. 229. (2) Where a complaint alleges that defendants indorsed a note which is set out in full, and that between its maturity and the next term of court they each requested him not to sue the maker,and promised to pay the debt, and thereby induced him delay suit, wherefore he now sues to recover of them the amount of the note and the costs of a suit against the maker, with interest, the complaint is sufficient. Brown v. Fowler, 133 Ala. 310, 32 S 584. 261. 49. Wilson v. Dean, 10 Iowa 432; Talcott v. Marston, 3 Minn. 339. [c] Reduction of interest.-A complaint on a note which shows a reduction of the rate of interest need not show that defendant accepted 50. Daniels v. Bradley, 4 Minn. the reduction. Van Dyke v. Doherty, 158 (where it was held that the 6 N. D. 263, 69 NW 200. statement as to interest could not 41. Chinn v. Hamilton, 5 F. Cas. be reached by demurrer, but that No. 2,685, Hempst. 438; Causin V. the remedy was by motion to Taylor, 4 Ark. 408; Brooks v. Pal-strike). mer, 4 Ark. 159. See generally In- [a] Interest provided for in note. terest [22 Cyc 1574]. -Where a petition on a note drawto [a] Form of declaration.-A ing interest sets forth in full a copy formal demand of the amount of the note, alleges that the amount claimed in the beginning of the specified therein is wholly due and declaration is usual, but the omis- unpaid, and asks "judgment for the sion of it is not cause of demurrer, amount due by said note," interest or fatal on error. Hence in declar- accrued on the note at the date of ing on a note bearing interest it is the rendition of judgment may be innot necessary to demand the interest cluded therein. Smith v. Watson, 28 in the beginning of the declaration. Iowa 218. Mitchell v. Conley, 13 Ark. 414. 33. Hutchins v. Flintge, 2 Tex. 473, 47 AmD 659. 34. Gardner v. Pitcher, 109 App. Div. 106, 95 NYS 678, 17 NYAnnCas 259 [aff 185 N. Y. 534 mem, 77 NE 1187 mem]. See also generally Contracts [9 Cyc 653]. 35. Gardner v. Pitcher, 109 App. Div. 106, 95 NYS 678, 17 NYCr 59 [aff 185 N. Y. 534 mem, 77 NE 1187 mem]. 36. Gardner v. Pitcher, 109 App. Div. 106, 95 NYS 678, 17 NYCr 59 [aff 185 N. Y. 534 mem, 77 NE 1187 mem]. 37. See supra § 160. Conflict of Laws. See also 38. See supra §§ 145-156. See also Conflict of Laws. 39. Mendenhall v. Gately, 18 Ind. 149; Brown v. Bunn, 16 Ind. 406; Wilson v. Clark, 11 Ind. 385; Shaw v. Wood, 8 Ind. 518; Roots v. Merriwether, 8 Bush (Ky.) 397; Cooke v. Addicks, 5 Pa. Dist. 387; Yale V. Ward, 30 Tex. 17. 40. Coyle v. Gozzler, 6 F. Cas. No. 3,312, 2 Cranch C. C. 625; Sawyer v. Patterson, 11 Ala. 523; Kennon V. Bailey, (Tex. Civ. A.) 37 SW 776. [a] Exhibit attached to petition.Where the note sued on is attached to the petition as an exhibit, this will excuse a failure to describe such note as bearing interest. Kennon v. Bailey, (Tex. Civ. A.) 37 SW 776. [b] "Use till paid."-The words "use till paid" appearing in a note have been held to mean interest until paid, and that no allegations as to such meaning were necessary. Mc [b] Summary proceedings.-In petition and summons on a note bearing interest, it is sufficient to set out the note, to aver that the debt remains unpaid, and to demand judgment for the debt, the damages, and the costs. It is not necessary specially to negative the payment of the interest. Cail v. Brookfield, 4 Ark. 554. 42. Daniels v. Bradley, 4 Minn. 158. 43. Butler V. Limerick, Minor (Ala.) 115; Boddie v. Ely, 3 Stew. (Ala.) 182. 44. Brooks v. Palmer, 4 Ark. 159. Causin v. Taylor, 4 Ark. 408. 46. Fitzgerald v. Lorenz, 181 Ill. 411, 54 NE 1029 (where a note reading "interest six per" was declared on as payable with interest at six per cent per annum); Ohm v. Yung, 63 Ind. 432 (an action on a note expressed to pay a specified sum "with ten per cent" in which no allegation or proof respecting the omission of the word "interest," after the words "per cent," was held necessary). [a] In Pennsylvania, there being no court of chancery, where an agreement for interest has been omitted from the note by mistake, plaintiff may declare on the note according to its equitable effect. Reichart v. Beidleman, 17 Serg. & R. 41. 47. Prichard v. Miller, 86 Ala. 500, 5 S 784. [b] Separate count on contract for forbearance. Where a declaration set out a note bearing interest at one per cent per month until maturity and contained a count for interest after maturity, proof of a parol contract to pay three per cent a month for forbearance after maturity was admissible under the count for interest, and, as the rate named in the note ran only until maturity, after which the parties were free to agree to a different rate, there was no variance. Draper v. Horton, 22 R. I. 592, 48 A 945. 51. Justice v. Charles, 1 Ind. 32, Smith 67. 52. Chinn v. Hamilton, 5 F. Cas. No. 2,685, Hempst. 438; State Bank v. Clark, 2 Ark. 375; Hall v. Foster, 114 Mass. 18; Talcott v. Marston, 3 Minn. 339; Sims V. Goudelock, 41 S. C. L. 23. See generally Interest [22 Cyc 1574]. 53. Thomas v. Bruce, 50 SW 63. 20 KyL 1818; Surlott v. Pratt, 3 A. K. Marsh. (Ky.) 174; Cummings v. Wagstaff, 1 Baxt. (Tenn.) 399. [a] Period covered. An allegation that the laws of the state where the note was executed authorized contracts for the payment of the rate specified in the note, without stating "until paid," authorized a recovery of that rate to the time of maturity only. Thomas v. Bruce, 50 SW 63, 20 KyL 1818. 54. Brackenridge v. Baxton, 5 Ind. 501. the fact that such laws were in force at the time the instrument was made,55 since otherwise the rate of interest recoverable will be that of the state where the action is brought.56 Amount claimed. The amount claimed as interest should be specified or facts should be stated from which the amount can be ascertained by calculation.57 [§ 1152] 16. Liability-a. In General. It is not necessary to allege as a conclusion defendant's liability; but it is necessary and sufficient to set out the facts from which that liability arises.58 In an action against an indorser, it is not necessary to allege that he is liable as such under the statute of Anne, or a similar act.59 But the allegations must show liability.60 If the breach of a promise to join in the execution of a note is relied on, facts showing such breach must be alleged. An erroneous reference to defendant as a guarantor is harmless, 55. Cummings V. Wagstaff, 1 Baxt. (Tenn.) 399. 56. Garner v. Tiffany, Minor (Ala.) 167 (holding that, where a note is declared on as made at Fayetteville, it is to be intended that Fayetteville is in the state where suit is brought, and hence that interest should be recovered under the laws of that state). 57. Gottfried v. German Nat. Bank, 91 Ill. 75. where the complaint is sufficient to charge him as a joint maker.62 Where a negotiable note indorsed by the payee has been discounted by the maker, there can be no recovery thereon without an allegation that the indorsement was for the maker's accommodation.63 If the holder of a draft intends to hold the drawer responsible for the amount on the ground of want of funds in the hands of the drawee, such fact must be averred in the complaint.64 [§ 1153] b. Indorsement Other Than for Transfer. Independent of statute, an irregular indorser who signs before delivery, or who signs after delivery but not for the purpose of transferring the paper, is often liable, according to his intention in so signing.65 Where such is the case, he must be charged according to the actual intention by special averments showing the facts relied on to fix his liability 66 as maker,67 terms, is good on demurrer. Ken- [a] Alder by reply.-The omisdall v. Kennedy, 8 KyL 532. [b] Indorser.—(1) A complaint, vendor and warrantor of a chattel, [a] Sufficient allegation.—(1) Antion against defendant merely as allegation that the note in suit bears interest at a stated rate per annum sufficiently describes in this respect a note bearing interest at a rate stated, payable annually. Rees v. Clark, (Tex. Civ. A.) 39 SW 160. (2) A declaration alleging a note to be payable one day after date, with interest at a specified per cent until paid, and that defendant became liable to pay such interest from the time the note fell due until paid, is good against a demurrer. Watkins v. Weaver, 4 Ark. 556. [b] Allegation construed.-A claim of the amount of the note with interest is a claim of interest from the time of the commencement of the action only. Barton v. Smith, 7 Iowa 85. 58. Adams v. McMillan, 8 Port. (Ala.) 445; Crowder v. Burlington El. Co., 176 Mo. A. 657, 159 SW 741 (facts showing liability of strangers to instrument must be alleged in order to charge them); Kennon V. Bailey, 15 Tex. Civ. A. 28, 38 SW 377. [a] Conditional liability."The complaint in the present. case cannot be sustained by virtue of section 162 of the Code, which provided that in an action upon an instrument for the payment of money only, it should be sufficient to set forth a copy of the instrument and allege the amount due thereon. It was decided by this court in Conkling v. Gandall, 1 Keyes (N. Y.) 231, that section 162 was not applicable where the liability of the defendant was conditional, and depended upon facts outside of the instrument; that in such a case the facts must be averred." Tooker v. Arnoux, 76 N. Y. 397, 401. 59. Snedecker v. Test, Tapp. (Oh.) 144: Wilthaus v. Ludecus, 39 S. C. L. 326. [c] Accommodation indorser.-An allegation that a defendant is sued as an indorser of a note, but that he received no independent consideration, is equivalent to an averment that he is an accommodation indorser. Baggs v. Funderburke, 11 Ga. A. 173, 74 SE 937. [d] Violation of contract.-In a suit to recover the amount of a duebill and asking a special lien upon the property described in a bill of sale executed to secure its payment, it is not necessary to set forth any violation of the contract other than the refusal of the debtor to pay the debt he has acknowledged, and which he, for that reason, must be presumed to have obligated himself to pay immediately or upon demand. Smith v. Ice Delivery Co., 8 Ga. A. 767, 70 SE 195. 61. Briel v. Exchange Nat. Bank, 172 Ala. 475, 55 S 808. 62. Ullery v. Brohm, 20 Colo. A. 389, 79 P 180. 63. Graham V. Louisville City Nat. Bank, 103 Ky. 641, 45 SW 870, 20 KyL 295; Callahan v. Louisville First Nat. Bank, 78 Ky. 604, 39 AmR 262. N. Y.-Cromwell v. Hewitt, 40 N. Y. 491, 100 AmD 527; Moore v. Cross, 19 N. Y. 227, 75 AmD 326; Allen v. Patterson, 7 N. Y. 476, 57 AmD 542; Richards v. Warring, 4 Abb. Dec. 47. 60. Anderson County Bank v. Fos-1 Keyes 576; McMoran v. Lange, 25 ter, 146 Ky. 179, 181, 142 SW 225 App. Div. 11, 48 NYS 1000; New (where the court said: "The allegation that the defendants countersigned the note is not sufficient to show that they assumed any liability"); Steinharter v. Covington City Nat. Bank, 10 KyL 359. [a] Joint and several liability.A petition which declares on a promissory note, executed by two, as the note of one of the obligors, the note being joint and several in its York Security, etc., Co. v. Storm, 81 Or. Deering v. Creighton, 19 Or. S. C.-McCelvey v. Noble, 46 S. C. sion of such averments cannot be supplied by the replication. Deering v. Creighton, 19 Ör. 118, 24 P 198, 20 AmSR 800. [b] In New York, (1) in order to overcome a presumption that defendant intended his liability to be that of a second indorser, the payee must show that defendant indorsed to give credit to the note with him and intended to charge himself as joint maker, guarantor, or surety, and that he parted with value on the faith of such indorsement. Coulter v. Richmond, 59 N. Y. 478; Phelps v. Vischer, 50 N. Y. 69, 10 AmR 433; Bacon v. Burnham, 37 N. Y. 614; Moore v. Cross, 19 N. Y. 227, 75 AmD 326; McMoran v. Lange, 25 App. Div. 11, 48 NYS 1000; Edison Gen. Electric Co. v. Zebley, 72 Hun 166, 25 NYS 389; Draper v. Chase Mfg. Co., 2 AbbNCas 79; Hall v. Newcomb, 7 Hill 416, 42 AmD 82; Campbell v. Butler, 14 Johns. 349; Nelson v. Dubois, 13 Johns. 175; Herrick v. Carman, 12 Johns. 159. (2) An allegation that, after the making of the note, it was indorsed by defendant and thereupon transferred for value to defendant is insufficient to admit proof to rebut the presumption that the payee was the first indorser. Draper v. Chase Mfg. Co., supra. (3) An allegation of indorsement before delivery is insufficient to overcome the legal presumption of an intention to become an indorser subsequent to the payee. Edison Gen. Electric Co. v. Zebley, supra. (4) It is sufficient to show that the indorsement by defendant was not that of a second indorser, and that he became bound to plaintiff, by a legal consideration for the promise, to pay the amount of the note to him. Lynch v. Levy, 11 Hun 145. 67. Ala.-Carter v. Long, 125 Ala. 280, 28 S 74. Ky. Kellogg v. Dunn, 2 Metc. 215 (allegation of indorsement in blank at and before delivery, whereby defendants "intended to be equally bound as obligors," is insufficient, accommodation indorsement not being alleged). Minn.-Stein v. Passmore, 25 Minn. 256. Or.-Deering v. Creighton, 19 Or. 118, 24 P 198, 20 AmSR 800. Ont.-Steer v. Adams, 6 U. C. Q. B. O. S. 60. See also Quesenberry v. Wood, 64 W. Va. 5, 60 SE 881 (must allege promise to pay). [a] Sufficiency.—A complaint averring that, although the names of defendants appeared on the back of the note, the contract between defendants and the payees, at the time it was made, was that defendants should sign it jointly with the maker, and that their names were written on the back as makers and 68 69 indorser, guarantor, or surety.70 If a liability on defendant's part is sufficiently averred, it is immaterial in what capacity the liability originated.1 Recovery may be had against an indorser on a note as a guarantor, although the declaration does not allege that he was a guarantor, where the contract contained in the note was admissible under the common counts and plaintiff was entitled to recover thereunder.72 Under the Negotiable Instruments Law which provides that a person placing his signature on an instrument otherwise than as maker, drawer, or acceptor is deemed to be an indorser unless he clearly indicates by appropriate words his intention to be bound in some other capacity,73 it is clear that, in declaring against an irregular indorser as an in not as indorsers, sufficiently declares against defendants as makers of the note. Carter v. Long, 125 Ala. 280, 28 S 74. [b] A declaration against a maker and guarantor which treats defendants as joint makers and contains no allegation of demand and notice is insufficient. Lightstone v. Laurencel, 4 Cal. 277. [c] An averment that defendant indorsed before delivery to induce the payee to take it is sufficient to hold him as maker. Marienthal v. Taylor, 2 Minn. 147. [d] Dismissal as to one signer.In an action on a joint and several note, against two who executed it at the same time, one by signing it and the other by writing his name on the back, it is error to dismiss the petition as to the latter on the ground that he was surety and could not be held after a discontinuance as to the signer. Brooks V. Thrasher, 116 Ga. 62, 42 SE 473. [e] If defendant is charged as guarantor he cannot be held as principal debtor. Powell v. Alford, 113 Ga. 979, 39 SE 449. [f] Ignoring suretyship.-It is proper to declare on a joint and several note signed by defendant as surety for an individual or a copartnership, as the note of defendant, in a several action against him, without setting out the joint contract also, and without taking notice of the suretyship or copartnership between the principals. Biddeford First Nat. Bank v. McKenney, 67 Me. 272. [g] Signers on the back of a sealed note may be charged as makers. Watson v. Barr, 37 S. C. 463, 16 SE 188. [h] Where defendant is privy to the consideration, and indorses a note nonnegotiable or payable to order, or to plaintiff or bearer, and not negotiated, defendant may be charged directly as maker or as indorser. Dean v. Hall, 17 Wend. (N. Y.) 214 [cit Nelson v. Dubois, 13 Johns. (N. Y.) 175]; Herrick v. Carman, 12 Johns. (N. Y.) 159. isors. Quesenberry v. Wood, 64 W. Va. 5, 60 SE 881. 68. Cahoon v. Wisconsin Cent. R. Co., 10 Wis. 290. [a] If the action is against an indorser on a nonnegotiable instrument, it seems that it is necessary to allege that the indorsement was made with intent to become liable thereon as indorser and guarantor. Steele v. Hudson, 30 Okl. 518, 120 P 616. [b] Charging separate estate of married woman. An allegation that defendant, a married woman, had a separate estate and that by indorsing she intended to, and did, charge her separate estate with payment of the note so indorsed and that the consideration thereof went for the benefit of her separate estate is sufficient. Gfroehner v. McCarty, 2 Abb NCas (N. Y.) 76. 69. Twogood v. Coopers, 9 Iowa 415 (holding that a conclusion of guaranty without stating facts is insufficient). [a] A purpose (1) to guarantee (Kellogg v. Dunn, 2 Metc. (Ky.) 215) (2) in writing (Powers v. Alford, 113 Ga. 979, 39 SE 449) must be alleged. [b] An averment of guaranty may be disregarded if indorsement is sufficiently set out. Waterbury v. Sinclair, 6 AbbPr (N. Y.) 20. [c] Statute of frauds.-A complaint alleging that a defendant signed under a parol contract of guaranty is not demurrable because failing to show a cause of action under the statute of frauds, for the reason that without the averment of guaranty there would still be a cause of action against defendant as maker. Smucker v. Wright, 3 Oh. Cir. Ct. 620, 2 Oh. Cir. Dec. 360. 70. Butler v. Rawson, 1 Den. (N. Y.) 105 (holding that, where the word "surety" follows the name of a signer, his liability must be specially pleaded). But see Vaughn v. Rugg, 52 Vt. 235 (holding that the word "surety" appended to the maker's signature does not prevent a recovery against him on the money counts). [a] Sufficiency.-A complaint alleging execution and delivery of a note to defendant who indorsed it and, for value received, delivered it to plaintiff who accepted it on the faith of said indorsement, sufficiently shows that defendant indorsed as surety. Smith v. Smith, 37 N. Y. Super. 203. 71. Winslow v. Boyden, 1 Minn. 383; Pierse v. Irvine, 1 Minn. 369. [i] In West Virginia, (1) in a suit by the holder against the maker and irregular indorser of a note, it is not necessary, in order to render such irregular indorser liable as maker, that the declaration allege either that such irregular indorsement was prior to delivery or that the holder has elected to treat him as maker; such prior indorsement being provable under a declaration charging such indorser as maker, and the institution of the suit being sufficient evidence of such election. Kidd v. Beckley, 64 W. Va. 80, 60 SE 1089. (2) That the maker and irregular indorsers on a nonnegotiable note are sued thereon jointly in an action of debt is sufficient to A. 553. show that plaintiff has elected to hold such indorsers as original prom [a] Payment by guarantor.-One who, having written his name on the back of the note before its delivery, thus becoming liable as guarantor, has paid it to the payee who indorsed and delivered it to him, may declare on the note as indorsee. McGregory v. McGregory, 107 Mass. 543. 72. Becker v. Hofsommer, 186 Ill 73. See statutory provisions; and supra § 122. 74. Corn v. Levy, 97 App. Div. 48, 56, 89 NYS 658 (where the court said: "Before this provision was enacted a third party could not be charged as an indorser of a promissory note before delivery unless the complaint alleged that the indorsement was made in order to give the maker credit with the payee or that the party indorsed the note as surety for the maker. The omission of such an allegation was held to be a fatal defect in an action to charge such an indorser. The necessity of an averment to that effect appears no longer to exist, however, in view of the plain language of section 114 of the Negotiable Instruments Law, which seems to require nothing more than the simple fact of the indorsement to render the defendant prima facie liable in such a case. (McMoran v. Lange, 25 App. Div. 11, 48 NYS 1000.)"). 75. Myers v. Crim, 3 How PrNS (N. Y.) 194. 76. Swift v. Ratliff, 74 Ind. 426; Krachts v. Obst, 14 Bush (Ky.) 34 (statute_construed), [a] Loan of money-An allegation, in a declaration in assumpsit against an indorser in blank of a note, that the indorser, in consideration that plaintiff then loaned and advanced the money to the makers, indorsed the note, is a sufficient averment that the loan was made, the note executed, and the indorsement made at the same time, which implies, without further specific averment, that the money was loaned at the request of defendant. Rhodes v. Seymour, 36 Conn. 1. 77. Conditions see supra § 1135. 78. U. S.-Sebree v. Dorr, 9 Wheat. 558, 6 L. ed. 160; Page v. Alexandria Bank, 7 Wheat. 35, 5 L. ed. 390; Sheehy v. Mandeville, 7 Cranch 208, 3 L. ed. 317; Earhart v. Campbell, 8 F. Cas. No. 4,241a, Hempst. 48. Ind.-Osborne v. Fulton, 1 Blackf. 233. Tex.-Seligson v. Hobby, 51 Tex. 147. [a] Пlustration.-A petition setting forth a cause of action on a note, alleging that it was executed Aug. 4, 1902, and fell due Sept. 20. 1902, a copy of which is attached to the petition and reads, "On September 20 we promise to pay." the year of maturity being left out, is good as against a general demurrer. Helm v. Briley, 17 Okl. 314, 87 P 595. [b] Misstatement.-Describing a note payable on a day certain as payable "on or before" that day is a harmless misstatement. Morton v. Tenny, 16 Ill. 494. 79. Campbell v. Worman, 58 Minn. 561, 60 NW 668 (where complaint was criticized but sustained as against objections raised for the first time after judgment); Libby v. Mikelborg, 28 Minn. 38, 8 NW 903. |