Kendall v. Parker
Synopsis
Non-negotiable Note—Stipulation Fob Attorney’s Fee.—A note containing a stipulation for an attorney’s fee, in case of suit thereon, is not negotiable.
Id .—Definition of Promissory Note—Contingent Additions.—A promissory note is a written engagement to pay absolutely and unconditionally a certain sum of money, whether the note be negotiable or non-negotiable; and an instrument is not a promissory note when there are contingent additions thereto.
Id.—Indorsement in Blank—Liability of Indorser to Second Indorsee.—When the payee of a non-negotiable note, having a stipulation for an attorney’s fee, in case of suit, transfers the same by simply indorsing it in blank, he does not become liable as an indorser to the indorsee of his indorsee.
Id.—Conditional Guaranty.—Independently of statute law there is no custom or rule of law which can add a conditional guaranty of payment to the assignment in blank of a non-negotiable note.
The Court. This is an appeal from a judgment entered after appellant’s demurrer had been overruled, appellant standing upon his demurrer.
The complaint is upon a promissory note which is non-negotiable, because it contains a stipulation for an [321]attorney’s fee. Suit is brought by the assignee of the first assignee against the makers and the payee as indorser.
The complaint avers that Hill assigned the note by writing his name upon the back thereof, and by delivering the same to the Huntington-Hopkins Company before the maturity of the note.
The Huntington-Hopkins Company, upon the maturity of the note, presented the same to the makers, and demanded payment thereof. The said makers refused and failed to pay the same or any part thereof, of which demand' and failure due notice was given to the defendant Hill. The note was transferred to plaintiff by the Huntington-Hopkins Company, without recourse and after maturity.
The complaint was demurred to on several grounds, all, however, founded upon the proposition that the complaint fails to show any liability on the part of Hill.
Plaintiff had judgment, not only for the debt which the note was given to secure, but for one hundred dollars, attorney’s fee. . The stipulation in regard to an attorney’s fee in the note is: “And in case suit is instituted to collect this note, or any portion thereof, we, or either of us, promise to pay such additional sum as the court may adjudge reasonable as attorney’s fees in said suit.”
The question here presented is, whether, when the payee of a non-negotiable note transfers the'same by a simple indorsement in blank, he becomes liable as the indorser of a negotiable note would, not only to his immediate indorsee, but to the indorsee of his indorsee, the second indorsement being also in blank; or, as in this case, “ without recourse-.”
It was held in England, prior to the statute of 3 and 4 Anne, that by the custom of merchants, when the payee indorsed his name upon a negotiable note, intending thereby to transfer it, the indorsee was at liberty to [322]
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