dissented, and delivered the following Opinion:
1 have not been able to concur in the Opinion of the Chief Justice in this .case.
We must assume that the complaint states all the circumstances connected with the giving of the note, and the Defendant not having denied airy of these allegations, we must, under the statute, and for the purpose of this action, consider them as true. In other words, there was no express understanding or agreement between Plaintiff and the Defendant, Connor, at the time he put his name upon the back of the note, what his (Connor’s) liability should be. There is no doubt but that the intention and agreement between the parties may be made out by parol proof of the facts and circumstances which took place at the time of the transaction. There is also no doubt but that a third person, or stranger to the note, who puts his name upon the back of it in blank at the time the note is made, may be held as an original promisor, guarantor, or endorser according to the nature of the transaction and the understanding of the parties, and the law of the place where the transaction takes place.
But in this case there was no agreement or understanding whatever, and there is no statute of the Territory upon the subject. By what rule then shall the contract of Defendant Connor be construed and his liability fixed. It seems to me that we must resort to the law merchant, a part of the common law of the land, a system that has grown up out of the necessities of business. By this law, where, a. stranger of third person *100writes his name on the back of a promissory note, made payable to the order of the payee, to whom it is after-wards delivered,-there is nothing in such an indorsement to indicate that the person making it means to be considered liable in any other character. than that of a strictly commercial indorser. This note was, in legal dffect, regular mercantile paper, upon which the Defendant, Connor, contracted the obligation of indorser within th.e law merchant, and by that obligation, and no other, he is bound.
If. my view of the law is right, then the allegation in' the complaint, that notice of the dishonor of the note was served upon the Defendant, Connor, is a material allegation, and it having been denied under oath in the answer, there is a material issue raised by the pleadings, and the Plaintiff was not entitled to a judgment upon them.
I am of the opinion that the judgment of the Court below should be reversed.