Majority
p. 189SUPERIOR COURT. William Murphy agt. George F. Merchant and Marvin J. Merchant.
Headnote
An allegation in the complaint that the note was made by the defendant, AB-, and “ for a further inducement to the plaintiff to accept the same, was indorsed by the defendant, C-D-, and was then delivered to and indorsed by the plaintiff,” held insufficient to charge 0-D-, the indorser, with liability, where the note was made payable to order of the plaintiff.
p. 190Special Term, Feb., 1857.
Jt seems, that it is very doubtful whether any evidence of a parol agreement varying the legal rights or obligation of the payee and. second indorser, can be admitted.
Demurrer to complaint.
The action was against one of the defendants as maker and the other as indorser of a promissory note, payable to the order of the plaintiff himself, and indorsed by him.
The complaint averred that the note was made by the defendant George F. Merchant; and “ for a further inducement to the plaintiff to accept the same, was indorsed by the defendant M. J. Merchant, and was then delivered to and indorsed by the plaintiff.” The complaint then set forth the note, averred demand and refusal of payment, and due notice thereof, and claimed judgment for the amount of the note, with interest and costs.
The defendant M. J. Merchant demurred, on the ground that the complaint did not state facts constituting a cause of action.
Hull & Stocker, for defendants.
R. Busteed, for plaintiff.
It is not necessary to decide that no state of facts can be shown that would entitle the payee and first in-' dorser of a negotiable note to maintain an action against a second indorser, and charge him as such; although,for myself, I entertain great doubts whether any evidence of a parol agreement, varying the legal rights and obligation of the parties, ought to be, or would now be admitted. It is sufficient now to say that the action is certainly not maintainable upon the facts set forth in this complaint, and that the demurrer must be allowed. (3 Sand. Rep. 647; 2 Duer Rep. 40; SKer.R.)
Judgment for the defendant M. J. Merchant, with usual liberty to plaintiff to amend upon payment of costs.