Roper v. Gould

SHAW, J.

Action against defendant as indorser of a promissory note. Judgment for plaintiffs, from which defendant appeals.

The note was signed January 1, 1909, due two years after date, negotiable in form, and made by one C. W. McArthur to John P. Benson, who indorsed it as follows: “March 1, 1909. For value received I hereby sell, transfer and assign all my right, title and interest in the within note to Carl P. Gould. John P. Benson”; and delivered it to the defendant, Carl P. Gould, who indorsed thereon the following: “For value received I hereby sell, transfer and assign all my right, title and interest in the within note to J. W. Roper and Ossie

[115]

Roper. Mch. 6, 1909. Carl P. Gould”; and delivered it to the plaintiffs.

Counsel for the respective parties devote much of their argument to the question as to whether the delivery of the note to plaintiffs by defendant, with the writing indorsed upon the back thereof, should be construed as an unqualified indorsement under and by virtue of which an implied conditional obligation was imposed upon defendant to pay the same (Civ. Code, sec. 3116), or whether it was a qualified indorsement within the meaning of section 3118 of the Civil Code, exempting him from such conditional obligation. Under our view of the case, we deem it unnecessary not only to decide this question, but likewise unnecessary to determine the question as to whether under the code provisions of this state there can be as to a negotiable instrument an indorsement thereon other* than that defined in section 3118 of the Civil Code, exempting the indorser from the implied warranties . specified in section 3116.

The court made an express finding, “That the writing on the back of said promissory note signed by the defendant constituted a qualified indorsement of said note. ’ ’ Section 3118, of the Civil Code, provides that, “An indorser may qualify his indorsement with the words, ‘without recourse, ’ or equivalent words,” in which case he is only responsible to the extent that he would be if the transfer was made without indorsement ; and section 3116 provides that the warranties and conditional obligation therein specified do not apply to a transfer of the instrument where the indorsement is qualified. Hence, it is clear that if the indorsement of the note was qualified, no recovery could be had thereon against defendant.