that a prior party could not be sued at all, as a link in the chain of title was lacking.

3 706. In the Cnited States Supreme Court it has been held that where a promissory note was payable to the order of several persons, the name of one of whom was inserted by mistake, or inadvertently left on when the note was indorsed and delivered by the real payees, one of whom was also the maker of the note, the indorsee had a right to recover upon the note, although the names of all the payees were not upon the indorsement, and had a right also to prove the facts by evidence.” In Michigan, where G. made a note payable to the order of J., and while it was unindorsed by G. procured M. to indorse it, agreeing to procure the indorsement of G., the payee before negotiating it; and then transferred it to the plaintiff without procuring J.'s indorsement, it was held that M. was not bound as indorser.

SECTION IV.

WHETHER OR NOT THE PARTY IS INDORSER, MAKER, OR GUAR

ANTOR.

$ 707. When indorsement is regular and successive.There is no doubt that, if a note be made payable to the order of the payee, and is indorsed by him, that his liability will be that of an indorser, and not that of a maker. If subsequent to his name, there appears the name of another

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"Gwinnell v. Herbert, 5 Ad. & El., 430 (31 E. C. L. R.)

5 * Pease v. Dwight, 6 How., 190.

•Gibson v. Miller, 29 Mich., 355 (1874), Graves, C. J.: “In receiving it as it then was, and without indorsement by the payee, he (the holder) accepted paper which he was bound to know would be open in his hands, when thus irregularly taken, to any defence of the nature of that made here, which Miller might make to it.” See also Morton v. Preston, 18 Mich., 60; Lancaster Nat. Bank v. Taylor, 100 Mass., 18; Whistler v. Forster, 18 C. B. (N. S.), 248; 1 Am. Rep's, 71.

* Finley v. Green, 85 III., 535, Breese, J.: “He being the payee of the note, could not at the same time be the maker and be bound by a promise to pay him. self.” Coon v. Pruden, 25 Minn., 105; Snell v. Northside Mill Co., 89 Ill., 582; ante, $ 704

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person indorsed upon it, such person can not be regarded in any other light than as indorser, and no parol evidence will be admissible, as against a bona fide holder without notice, to show that he intended to bind himself in a different character. This view of the law rests upon the fact that there is no ambiguity in the position of his name, and none in his relation to subsequent parties to the instrument. Upon its face the instrument evidences that he intended to bind himself as an indorser, for it purports to have been regularly transferred to him, by the payee's indorsement, and by him transferred, by his own indorsement, to the indorsee. And unless he has indicated an intention to become liable as a surety or guarantor, by some expression to that effect, he will very clearly be bound as an indorser, and be entitled to require demand and notice as a condition precedent to his determinate liability."

$ 707a. Party whose name is on back of note payable to bearer, or which has become so by being made payable to maker's order and indorsed by him.-If the note be

payable to bearer either in terms or becomes so in effect by being made payable to the maker's order, and then being indorsed by him, in either case the party who places his name on the back of it will be deemed an indorser only.” Such a case as this, as said by Bigelow, J., in Massachusetts,' in a case where the note was payable to and indorsed by the maker, “ does not fall within that anomalous class of cases where a third person, neither maker nor payee, puts his name on the back of a note before its indorsement by the payee, but is the ordinary case of an indorsement of a note payable to bearer, the effect of which can not be varied or controlled by parol proof.”

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Roberts v. Masters, 40 Ind., 463; Vore v. Hurst, 13 Ind., 551; Dale v. Moffitt, 22 Ind., 114; Clapp v. Rice, 13 Gray, 403 ; Moies v. Bird, ii Mass., 436; Howe v. Merrill, 5 Cush., 80; Rickey v. Dameron, 48 Mo., 61.

5 *Camden v. Mckoy, 3 Scammon, 437 ; Thatcher v. Stevens, 48 Conn., 561; Dubois v. Mason, 127 Mass., 37; Bigelow v. Colton, 13 Gray, 309.

• Bigelow v. Colton, 13 Gray, 309.

7076. Party deemed regular indorser when payee afterward indorses before him.-If a party not the payee at the inception of the note puts his name on the back of it, and the payee afterward indorse it over such party's name, the latter will then be second indorser, and his liability can not be varied by parol evidence. And the like result is reached if the payee's name be left blank, and the holder of the note in negotiating it fills it up with the name of the party who has signed his name on the back."

§ 7076. When note blank as to payee is irregularly filled up.-In Virginia, where a note blank as to the payee was indorsed in blank for the maker's accommodation, and in that form negotiated by the maker to a third party, the book-keeper of the latter inserted his (the holder's) name as payee, it was held that such holder could recover against the accommodation indorser. And the like view has been taken in England in a similar case.4

§ 708. Irregular indorser of note styling himself “ backer” or “surety.”—In New York, where P. made a note payable to S. or bearer, with a view of borrowing money from him, and before delivery it was indorsed thus, “ J. I. H., backer, Schoharie,” it was held that J. I. H. seemed “to have added the word “backer' for the purpose of declaring still more explicitly that he was not to be regarded as an indorser.” 5 And in Indiana, where a party wrote his name on the back of a note, at its execution as “surety” he was regarded as a joint maker. These decisions seem to depend on well-recognized principles, and to be correct in their conclusions.

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· Clapp v. Rice, 13 Gray, 403; Dubois v. Mason, 127 Mass., 37. · Armstrong v. Harshman, 61 Ind., 52. 3 Frank v. Lilienfeld, 33 Grat., 393.

* Morriss v. Walker, 69 E. C. L. R., 588. In this case the action was on a negotiable note by the holder, who was the first indorser, against the second indorser. It was decided that the action was maintainable on the facts stated in the pleadings, and that the proper form of pleading in such a case is for the plaintiff to declare on the indorsement by him to the defendant as “ without consideration.”

.Seabury v. Hungerford, 2 Hill (N. Y.), 80, Bronson, J.

$ 708a. Regular indorser styling himself surety or guarantor.-If indorsers in regular order style themselves sureties, it has been held in New York that they do not divest themselves of their character as indorsers. The only effect of such designation is to indicate the character in which they indorse, and to give them the knowledge of sureties in addition to their rights as indorsers. “As indorsers they could not be made liable without demand and notice; as sureties they are entitled to all the privileges of that character." 1 The case of a regular transfer accompanied by a guaranty is hereafter considered. 2

$ 709. Whether or not one not payee writing his name on back of paper before him is an indorser.-When a note is made payable to the order of the payee, and the name of another appears indorsed in blank upon it, and was then indorsed before the note was delivered to, or indorsed by, the payee, a very different question, and one upon which the authorities are very much at issue, arises. In such cases such person does not appear upon the face of the paper to have held, and to have transferred the title, but rather to have placed his name upon its back to add strength and credit to it, and thus render it more easy of circulation; and the inquiry is presented whether he intended to bind himself for its payment as a joint maker or surety, as a guarantor, or only as an indorser, whose liability can only be fixed by due demand and notice.

If the note be not negotiable, it is plain that such party can not be regarded as an indorser, for the simple reason that there is no such thing as an “indorsement,” in its strict and proper commercial sense, of any other than negotiable paper. 8

' Bradford v. Corey, 5 Barb., 461 (1849). See to same effect, Kamm v. Holland, 2 Oregon, 59 (1863). See also chapter Xli, on Principal and Surety

vol. 2.

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. See vol. 2, § 1781.

Watson v. Hurt, 6 Grat., 644; Hall v. Newcomb, 7 III., 416; Griswold v. Slocum, 1o Barb., 402; Orrick v. Colston, 7 Grat., 189; Commonwealth v. Powell, u Grat., 826, Comparree v. Brockway, 11 Humph., 358; Fear v. Dun. lap, 1 Greene (Iowa), 334; Gorman v. Ketchum, 33 Wis., 427.

$ 710. General admissibility of parol evidence to ascertain intention as between immediate parties.—When the note is negotiable the question is by no means capable of such

easy and satisfactory solution ; but whatever diversities of interpretation may be found in the authorities on the subject, they very generally occur, though not with entire unanimity, that, as between the immediate parties, the interpretation ought to be in every case such as will carry their intention into effect, and that their intention may be made out by parol proof of the facts and circumstances which took place at the time of the transaction. If the person who places his name on the back of the note before the payee intended at the time to be bound to the payee only as a guarantor of the maker, he shall not be deemed to be a joint promisor or an absolute promisor to the payee.? If he intended to bind himself as a surety or joint maker of the note, he will not be permitted to claim afterward that he was only a guarantor. And if he intended to be bound only as an indorser, the better opinion is that this also may be shown as between him and the payee."

§ 711. Grounds for admissibility of parol evidence.—The ground upon which parol proof of intention and agreement

* Good v. Martin, 95 U. S. (5 Otto), 95 (1877); Rey v. Simpson, 22 How., 241; Sylvester v. Downer, 20 Vt., 355 (1848) ; Quin v. Sterne, 26 Ga., 224 (1858). (In Chaddock v. Van Ness, 35 N. J. Law, 571, it was held that such a signature imports no implied or commercial contract whatever, but it may be shown by parol what was intended). Jennings v. Thomas, 13 Smedes & M., 617; Comparree v. Brockway, u Humph., 358; Ives v. Bosley, 35 Md., 562 ; Nurre v. Chittenden, 56 Ind., 465; Owings v. Baker, 54 Md. ; Iser v. Cohen, 57 Tenn., 421. See post, $$ 715, 717.

? Camden v. Mckoy, 3 Scam., 437 (1842) ; Seymour v. Farrell, 51 Mo., 95; Taylor v. French, 2 Lea, 560 ; Worden v. Salter, 90 III., 160.

Rey v. Simpson, 22 How., 341; Walz v. Alback, 37 Md., 404; In Scotland, if one not payee indorse a bill in his own name, he is liable as a new acceptor; and if such a person indorse a note, he is liable as a joint maker. Thomson on Bills (Wilson's ed.), 174.

• Eberhart v. Page, 89 III., 550 ; Mammon v. Hartman, 51 Mo., 169. Wagner, J.: “When a party writes his name on the back of a note, of which he is neither payee nor indorsee, in the absence of extrinsic evidence, he is to be treated as the maker thereof. But parol evidence is admissible to show that he did not sign as maker, but as indorser." Lewis v. Harvey, 18 Mo., 474 ; Western Boatmen's Benevolent Ass'n v. Wolff, 45 Mo., 104; Kuntz v. Tempel, 48 Mo., 71

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