Dissenting Opinion.
Comstock, O. J„This action was commenced by appellee William Baker against the appellants and appellees, Thompson & Bland, on three promissory notes, each in the sum of $533.33. The appellants were sued as makers, and appellees Thompson & Bland as indorsers. All of the appellants filed a general denial; all but House filed a plea of non est factum. A trial resulted in a finding and judgment for plaintiffs in the sum of $1,309.67 against the appellants. No judgment was rendered against Thompson and Bland, appellees. Overruling appellants’ motion for a new trial is the only error assigned. The reasons given for a new trial are: The finding of the court is contrary to law; *140is 'contrary to the evidence; and is not sustained by sufficient evidence. The complaint avers that the notes were made payable to the order of Thompson & Bland at the First Rational Bank of Vincennes, Indiana, and that before maturity they were, for a valuable consideration, assigned by said payees, by indorsement thereon, to the plaintiff Baker.
Counsel for appellants calls attention to the fact that the notes in suit were introduced in evidence without proof of the signatures of the appellants, and claims that for that reason alone, inasmuch as the plea of non est factum made such proof necessary before their introduction, there is not sufficient evidence to support the judgment. The record fails to show that there was any objection made to the introduction of these notes without the preliminary proof of the signatures thereto. Such proof would therefore be deemed to have been waived. 'However, each of the appellants testified to having signed them. The failure to make the proof at the proper time could not have harmed appellants. As passed upon by the trial court, the evidence showed that the appellants had signed the notes. The three notes in suit are exactly alike except as to the time of their maturity. Printed blanks were used with the date, amount, and place of payment in blank. There was a blank space in each of the printed forms on which said notes were written, between the printed word “at” and the printed word “bank,” also a blank space after the word “bank.” The blanks then before being filled out read as follows, viz.: $- - -after date we or either of us promise to pay to the order of-■- payable at - bank -value received without any relief from valuation or appraisement laws, with interest at six per cent, per annum from date, payable annually until paid and attorney’s fees. The drawers and indorsers severally waive presentment for payment, protest, and notice of protest and non-payment of this note. —---— — ■
*141It is shown by the -uneontradicted. testimony of the appellants that, when they signed these notes, the words “First National,” before the word “bank,” and “Vincennes, Indiana,” after said word, were not in the notes, and that they did not authorize any one to insert them. One of the appellants testified that he asked Gilligan, the agent selling the horse, where the note was payable. *He said it would probably be sent to Vincennes bank. Another testified that he asked Gilligan where the notes were payable, and he said he supposed it would be at Bicknell. Another appellant, Robert W. Sprinkle, testified “I asked [without stating of whom] where the notes were to be payable, and he said: ‘Never mind Mr. Sprinkle; I will attend to that.’ ” They all saw the word bank, and the blank spaces, but neither of the other appellants at the time of signing the notes, or at any time made any statement or request, or gave any direction as to where the notes were to be'made payable. There was no agreement or understanding that they were not to be payáble at a bank. Appellants do not testify that they did not intend to give a note payable at a bank.
In Marshall v. Drescher, 68 Ind. 359, suit was brought upon a promissory note made payable in a bank in this State against the maker. The evidence shows that, when the note was signed and delivered to the payee by the defendant, no place was designated where the same should be made payable ; that, after the words “payable at,” a blank was left in said note; that said blank was not scored or marred out when the note was executed, and when the payee was in the act of leaving the house of appellant, he asked the defendant where he must leave said note for payment, and defendant replied: “At the First National Bank at Spencer; that afterwards, without the knowledge or consent of the defendant, the said payee altered said note by inserting therein after the word ‘at-’ the following: ‘The First National Bank at Spencer, Indiana,’ and then, before the said note was due, it was sold and transferred to one *142William M. Moore, who was ah innocent purchaser for value, who had no notice of the alteration made by the payee of said note, and that there was nothing upon the face of the said note to indicate that the same had been altered or tampered with; that subsequently, and after the note became due, the said Moore sold and transferred the said note to plaintiff, who took the same with the full knowledge of the defense set forth in the answer.”
The expression of the court in that case seems to apply so directly to the case before us that we quote as follows: “It is plain that the above note had all the elements of commercial paper, negotiable by the law merchant, at the time the maker executed it, except filling the blank left to insert the name of the place at which it was made payable. The nqte, upon its face, imports that it was intended to be made negotiable, or the waiver of protest and notice would not have been inserted. The payee had implied authority, from the condition of the note, and from the statement of the maker to leave it ‘at the First National Bank at Spencer’ for payment, to fill up the blank in the note as he did. We think the finding shows that the note was valid in the hands of the payee, notwithstanding the alteration, and, being so valid, was valid in the hands of the appellee, whether he had notice of the alteration or not. The following authorities will support the rulings of the court below: Hereth v. Merchants Nat. Bank, 34 Ind. 380; Riley v. Schawacker, 50 Ind. 592; Cornell v. Nebeker, 58 Ind. 425; Gothrupt v. Williamson, 61 Ind. 599; Woollen v. Ulrich, 64 Ind. 120; Noll v. Smith, 64 Ind. 511, 31 Am. Rep. 131.”
In Gillaspie v. Kelley, 41 Ind. 158, 13 Am. Rep. 318, a blank was left after the words “payable at,” and before the words “bank at Frankfort,” in which the name of a certain bank was inserted. The court held it to be obvious, not only from the face of the note, but from the evidence of the appellee, that the maker of the note in question intended to make the same negotiable and governed by the law merchant. *143The ease at bar can not be distinguished from Marshall v. Drescher, 68 Ind. 359; Gillaspie v. Kelley, supra. In neither of the foregoing cases was the bank where payable named.
Appellee gave value for the notes upon their face governed by the law merchant, before maturity and without notice of any alteration therein. When executed they contained provisions usually set out in notes payable in bank, and not usually contained in those not payable in bank. When executed they were incomplete commercial paper. There is nothing, as we are advised by the record, about the notes themselves, or the circumstances attending their sale, to excite suspicion in the mind of a reasonably cautious person. The notes were in the usual form; no interlineations to indicate that the words fixing the place of payment were written at a different time or in a different handwriting than the balance of the written portion of the note. There is nothing to indicate that the indebtedness of which the notes were the evidence was not due or that the notes were obtained by artifice or fraud. It is a proposition oí common acceptance that, when one of two parties must suffer, the loss should be sustained by him who has given the confidence and thus enabled the fraud to be perpetrated. In the case before us there was sufficient space left to complete the notes by making them negotiable by the law merchant. When purchased before maturity in good faith, they were perfect in form. The act of the makers enabled the payees to put the paper in the form in which it was purchased. It appears that appellants made payments on each of the notes in suit. They were indorsed on the notes, and were presumably so paid before the transfer. Upon the first note they paid $333.34; upon the second, $183.32; upon the third, $316.66. Appellee Baker testified that he bought the notes before their maturity, paying therefor $825; that at the time they were worth a little over $900; that the words “Eirst National” and “Vincennes, Indiana” were in each *144of them, when he bought them; that he had no knowledge o£ any change having been made in them.
The laws of this State, as announced by the Supreme and this Court, with reference to the purchase of negotiable paper before maturity, is, that if there is anything about the paper itself, or the circumstances attending its presentation for discount, calculated to excite suspicion in the mind of a reasonably prudent person, it is the duty of the purchaser to make inquiry of its genuineness; otherwise not. Tescher v. Merea, 118 Ind. 586; Citizens Bank v. Leonhart, 126 Ind. 206; Hankey v. Downey, 3 Ind. App. 325; National Ex. Bank v. Berry, 21 Ind. App. 261; Pope v. Branch Co. Savings Bank, 23 Ind. App. 210.
As set out in the complaint, the notes are governed by the law merchant. Without the name of the bank they are not. A change of a non-negotiable note, which makes it negotiable by the law merchant, is a material one. Had the parties intended that the note should be made payable in bank, there would be no question as to the right of the payee to have made them so payable. There was no expressed intention on the subject. The intention of the parties was a question of fact to be determined by the court upon the evidence. The trial court in view of the blanks left in the notes, the absence of instructions, and the subsequent payments made upon them, was not without evidence sustaining the conclusion that appellant impliedly consented to the addition alleged to have been made.
I can not agree with the majority opinion. The judgment should be affirmed.