Cady v. Bay City Land Co.

*18 Denied October 11, 1921.

On Petition eor Rehearing.

(201 P&e. 179.)

Rehearing Denied.

Messrs. Botts S Winslow, for the petition.

Messrs. Johnson é Handley, contra.

In Banc.

BURNETT, O. J.

As grounds for rehearing, the plaintiff urges that because the notes sued upon and the indorsements thereon were not before us, as stated in the former opinion, we could not review the ruling on the motion for nonsuit.

Appended to the bill of exceptions is the following certificate signed by the trial judge and dated September 20, 1920:

“The foregoing bill of exceptions, including the attached transcript of testimony taken in the trial of the above cause, having been tendered by the defendant Schiffman, the same is hereby settled and allowed as a full and complete transcript of the proceedings had on the trial of said cause, and of all the testimony taken with the objections and exceptions taken and allowed by the court at that time.”

According to the body of the bill, the only testimony was that of the plaintiff himself and the notes sued upon which with the indorsements thereon were offered in evidence by the plaintiff. For the purposes of this opinion it may be conceded, as plaintiff’s counsel intimates in argument, that on the back of each of the notes was the name “Solon Schiffman” *19 and the words “Notice of protest waived and payment guaranteed.” The record, however, is utterly devoid of any testimony about whether the name was signed by or on behalf of Schiffman.

In his brief on petition for rehearing the contention of the plaintiff is thus .stated:

“These two notes in evidence, together with the indorsements thereon, would at least tend to establish the genuineness of the Schiffman signature. This is especially true in view of the fact that Schiffman admits in his answer the ‘transfer’ of the notes and this indorsement of Schiffman on the back of the notes shows that this transfer was made by such indorsement and not otherwise, and that such indorsement and transfer is followed by Schiffman’s signature.”

As shown by the bill of exceptions, the objection urged by counsel for the defendant Schiffman upon which his motion for nonsuit was based, concluded with this language, speaking of the amended complaint :

“It does not show that the indorsement was signed by Mr. Schiffman or anyone. The indorsement is set out and it does not include the signature of the defendant Schiffman. ’ ’

All that the answering defendant admitted was that he transferred the note. The mere transfer may be accomplished without indorsement. In such case, the transferee takes the title of the transferor and in addition thereto acquires a right to have the indorsement of the transferor: Section 7841, Or. L. It is quite consistent with the pleadings in the present instance that the transfer was made without indorsement, that is, without the signature of Schiffman. That is all that is admitted by the answer. It is *20 true, the indorsee has a right to the indorsement of the transferor. This, however, cannot be enforced in an action at law. It is only by a proceeding in equity that the actual indorsement of the transferor can be secured: Simpson v. First National Bank, 94 Or. 147 ( 185 Pac. 913 ). On the face of the pleadings, therefore, we have the dilemma: If Schiffman did not sign the indorsement, he is not liable, because his name is not upon the note: Section 7810, Or. L.; on the other hand, if he merely indorsed it in blank without the words quoted in the amended complaint, “payment guaranteed,” which is all the indorsement that could be compelled in the absence of additional agreement, he would not be liable under the complaint, because there is, no allegation of presentment and notice of nonpayment. If the plaintiff relies on the mere transfer of the note without indorsement, which is all the answer admits, he must fail in this action, because only in equity can he compel the transferor to make the indorsement.

5. "What we endeavored to point out in the former opinion was, that the plaintiff is entitled to prove that Schiffman actually signed the indorsement, and that if that could be proved, the complaint contained enough to hold him without any allegation or proof of presentment and notice of nonpayment of the note. But these averments of the complaint are traversed by the answer. In other words, while admitting transfer of the note, which is possible without indorsement, Schiffman denies indorsing the note. This puts the plaintiff on proof of his allegation and he must establish by the testimony not only that Schiffman’s name is on the note, but that it is his *21 genuine signature as an indorser in the enlarged form indicated.

In Sears v. Daly, 43 Or. 346 ( 73 Pac. 5 ), the name of the defendant Phya Daly appeared appended to the note sued upon, in form as a signature. It was contended there, as here, that the fact that the name appeared there gave color to the presumption that it was rightfully there, and as her signature; but the court held to the contrary and concluded that such a presumption did not attach and that there must be some proof that the defendant signed the note. This doctrine was also followed in Long v. Hoedle, 60 Or. 377 ( 119 Pac. 484 ).

The deduction is, that even if the notes set out in the complaint had been appended to the bill of exceptions and the name of Schiffman had appeared on the back of them, the testimony would not have been sufficient to prove his signature. This contention was directly raised at the trial, according to the bill of exceptions, and its solution cannot be avoided. As pointed out in the former opinion, if Schiffman really signed the indorsement, “payment guaranteed,” thus enlarging the liability of an indorser in blank, the plaintiff would be entitled to recover from him without alleging or proving presentment and notice of nonpayment. But the mere fact that his name appears written on the back of the notes is not proof that he wrot§ it there.

The petition for rehearing is denied.

Rehearing Denied.