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ALEXANDER REY, WILLIAM R. MARSHALL, AND JOSEPH M. MARSHALL PARTNERS UNDER THE NAME, STYLE, AND FIRM, OF MARSHALL & CO., PLAINTIFFS IN ERROR, v. JAMES W. SIMPSON.

December 1, 1859

ALEXANDER REY, WILLIAM R. MARSHALL, AND JOSEPH M. MARSHALL PARTNERS UNDER THE NAME, STYLE, AND FIRM, OF MARSHALL & CO., PLAINTIFFS IN ERROR,
v.
JAMES W. SIMPSON.



THIS case was brought up by writ of error from the Supreme Court of the Territory of Minnesota.

It was an action brought by Simpson in the District Court of the second judicial district, Ramsey county, in the Territory of Minnesota, upon a promissory note given under the following circumstances:

$3,517.07 1/2.

ST. PAUL, June 14, 1855.

Six months after date, I promise to pay to the order of James W. Simpson, three thousand five hundred and seventeen dollars and 07 1/2-100, value received.

(Signed) ALEX. REY.

Simpson was the creditor, and it was intended to give him the security of Marshall & Co.; but instead of drawing the note in favor of Marshall & Co., and obtaining their endorsement before handing it to Simpson, the note was drawn as above, and give to Simpson with the endorsement of Marshall & Co. upon it. The whole case turned upon the nature of this note. Under the usual form of proceeding, Simpson would have had to write his name over that of Marshall & Co., and thus present the spectacle of the first endorser suing the second endorser. According to the old system of pleading, there might have been a difficulty; but the system of pleading in Minnesota obviated all difficulty, by enjoining upon suitors, in framing their declarations, to give a statement of the facts constituting their cause of action. Simpson's counsel therefore filed a complaint against the maker and endorsers of the note, joining them in one action, and complaining that they sould not pay the note. In this complaint, Marshall & Co. were called endorsers, and the question immediately arose, whether they were endorsers or guarantors. Accordingly, the counsel for the defendants moved to strike out of the complaint all those parts which spoke of Marshall & Co. as endorsers, for the purpose of guarantying the note, and of becoming sureties and security to the plaintiff. But the court overruled the motion. The counsel for the defendants then demurred to the complaint, upon the following grounds, which are inserted because the reporter does not intend to report the arguments of counsel in this court upon this mode of making a promissory note, and this mode of declaring upon it.

The grounds of demurrer were the following, viz:

First. The said complaint does not state facts sufficient to constitute a cause of action against the said defendants, William R. Marshall and Joseph M. Marshall, or either of them, in that––

1. The facts stated in the said complaint show that the contract of the defendants, Marshall, upon the promissory note in said complaint mentioned, was that only of endorsement; and the allegations in the said complaint of the purpose for which the said defendants endorsed the said note, and of the reliance of the plaintiff upon such endorsement as security to him, are incompetent either to vary the said contract, or to change in any respect the legal obligations of the defendants, Marshall.

2. It appears, upon the face of the said complaint, that the plaintiff is the payee of the said note, that the same is payable to the order of the plaintiff, and that the plaintiff has never endorsed nor negotiated the said note.

3. The facts stated in the said complaint show, that the defendants, Marshall, could only have been made liable upon the said promissory note in the character of second endorsers, and in that character only upon the endorsement and the transfer of the note by the plaintiff. The note having matured without endorsement or transfer by the plaintiff, no liability can in any event attach to the defendants, Marshall, upon the same.

Second. There is a defect of parties defendant in said action, in that––

1. The defendants, Marshall, are not proper parties to an action by the plaintiff upon the said note, because, as appears upon the face of the complaint, they are but the endorsers of a promissory note payable to the order of the plaintiff, and as such endorsers cannot be held by the payee.

2. The facts stated in the sais complaint show that the maker of the said promissory note alone is liable to the plaintiff for the payment thereof.

This demurrer was overruled, and, after some other proceedings, the court gave judgment for the plaintiff, when the defendants carried the case to the Supreme Court of the Territory. The points made in that court upon both sides are inserted, because they are substantially those which were made in this court.

Points of plaintiff in error, with authorities relied on:

I. The contract of the defendants (plaintiffs in error) was that of endorsers, and a contract of a different character cannot arise and will not be implied in conflict with the written agreement. The defendants being endorsers, they are endorsers of the plaintiff, and not liable to him.

17 Johns., 326; 17 Wen., 214.

2 Hill, 80; 3 Ibid, 233; 7 Ibid, 416.

19 Wen., 202; 6 Barber, 282.

1 Comstock, 321; 1 Spence N. Y., 256.

1 Green Ia., 331; 13 Lin. and Man., 617.

1 Jones's Pen., 46; Story on Promissory Notes, sec. 134, note.

Story on Bills, 215; 11 Johns., 201.

1 Phillips's Ev., 547; 6 ...


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