Bowne v. Douglass

By the Court, Ingraham, P. J.

The defendant in this case is sued as the indorser of a promissory note made payable to his order as assignee, and indorsed by him in these words: “> Gharles Douglass, assignee.” The note was received by him in payment of a note belonging to him as assignee of Thomas Douglass. The only question in the case is as to the liability of the defendant as indorser.

Where a person signs a note as maker, the addition to his name of any special character in which he may be acting does not relieve him from personal liability as maker, but such addition is considered merely as descriptio personae, and not as limiting or restricting the maker’s liability. . (Moss v. Livingston, 4 N. Y. Rep. 208. Brockway v. Allen, 17 Wend. 40.) And so where a bill is drawn on an individual with the addition of such an employment, and he accepts the bill in the same form, he is liable. And the same rule is .applied to the case of one who indorses paper, although he adds a special character to his signature, when the note was not made payable to him in that capacity. (Ticknor v. Allen, 3 E. D. Smith, 561.) In such a case the indorsement is the same as making a new note; and the holder has no knowledge that the note is' held for any other purpose than that of the individual indorsing it.

But where the note is made payable to any one in such qualified character, and he indorses it in the same way, a different rule prevails. This rule was distinctly held by Denio, J. in Babcock et al. v. Beman, (1 Kern. 200.) There the note was made payable to B. Beman, treasurer, and was so indorsed by him, and the indorsement was held' to be a qualified indorsement for the purpose of passing the title to the note, and not containing a contract to pay. The same principle was held in Mott v. Hicks, (1 Cowen, 514.) And in Hicks v. Hinde, (9 Barb. 528,) it was applied to the drawer of a draft, who was considered to be liable as a surety, the same as an indorser. The court held that a party might add restrictive words to qualify his liability. (See also Brockway v. Allen, 17 Wend. 41; Watervliet Bank v. White, 1 Denio, 608.)

In The Bank of Geneva v. Patchin Bank, (19 N. Y. Rep. 312,) this question was fully examined. Judge Denio says : “ In the absence of any evidence to connect the bill with the defendants’ bank, the indorser would be regarded as payee, and the abbreviation (cash.) affixed to his name, would be considered as desoriptio personen. But when it has been shown that he was the defendants’ cashier, the presumption would be that the note payable in that form was the property of the bank; and when the indorser indorsed it with the addition mentioned, he sent it, &c. for discount, &c. The indorsement of Stokes, on this fact being shown, was the indorsement of the bank, and not Stokes’ individual act.”

[New York General Term, September 15, 1862.

In the present case it was proven that the defendant was assignee of an insolvent estate; that the note was received in compromise of a note belonging to that estate; that it appeared on the note that it was payable to the defendant as assignee, and was indorsed by him in that capacity. Such indorsement does not make him personally liable, but operates to transfer the title to the note.

The judgment should he affirmed.

Ingraham, Barnard and Clerke, Justices.]