Indorser.

Liability of indorser in blank.

Warranty.

as

SECTION 1677-3. A person placing his signature upon an instrument otherwise than maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropri ate words his intention to be bound in some other capacity.

NOTE-This expresses the law of this state, except in the United States Courts, and will, if adopted, control those courts also in regard to Wisconsin contracts. Cady v. Shepard, 12 Wis., 639. Davis v. Barron, 13 Wis., 227. Snyder v. Wright, id. 689. King v. Ritchie, 18 Wis., 554. Good v. Martin, 95 U. S., 90. 1st Nat. Bk. v. Fence Co., 24 Fed. R., 31. Phipps v. Harding, 70 Fed. R., 468. In the federal courts he is a maker or guarantor, according to circumstances. 95 U. S., 90.

SECTION 1677-4. Where a person, not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as indorser in accordance with the following rules:

1. If the instrument is payable to the order of a third person he is liable to the payee and to all subsequent parties.

2. If the instrument is payable to the order of the maker or drawer, or is payable to bearer, he is liable to all parties subsequent to the maker or drawer.

3. If he sign for the accommodation of the payee, he is liable to all parties subsequent to the payee.

NOTE-Where a note intended to be used in payment for goods to be purchased of the payee, is indorsed in blank by a third party before delivery, for the purpose of giving credit to the maker, and the payee parts with his goods upon the credit of such indorsement, upon demand at maturity and protest for non payment with due notice thereof, the indorser is liable. King v. Ritchie, 18 Wis., 582.

See note to preceding section.

SECTION 1677-5. Every person negotiating an instrument by delivery or by a qualified indorsement, warrants:

1. That the instrument is genuine and in all respects what it purports to be.

2. That he has good title to it.

3. That all prior parties had capacity to contract;

4. That he has no knowledge of any fact which would impair the validity of the instrument or render it valueless.

But when the negotiation is by delivery only, the warranty extends in favor of no holder other than the immediate transferee.

The provisions of subdivision three of this section do not apply to persons negotiating public or corporate securities, other than bills and

notes.

NOTE-The sale and transfer, for a full and fair price, of a note past due, indorsed in blank by the person to whose order it is payable, implies a warranty by the vendor, that such indorsement is valid. Giffert v. West, 37 Wis., 115.

SECTION 1677-6. Every indorser who dorses without qualification, warrants to subsequent holders in due course:

in- warranty of all indorser with

1. The matters and things mentioned in subdivisions one, two and three of the next preceding section; and,

2. That that the instrument is at the time of his indorsement valid and subsisting.

And in addition, he engages that on due presentment, it shall be accepted or paid, or both, as the case may be, according to its tenor, and that if it is dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it.

NOTE-One who has indorsed a note in blank, without qualification expressed in the writing, cannot show by parol, as against the person to whom he delivered it, a contemporaneous agreement between them that he should not be liable as indorser, where no mistake or fraud in procuring the indorsement is alleged. Charles v. Denis, 42 Wis., 56.

out qualification.

of instrument

SECTION 1677-7. When a person places his Indorsement indorsement on an instrument negotiable by de- negotiable by livery he incurs all the liabilities of an indorser. delivery.

NOTE-See note to section 167-3. [1677-3.]

liable in order

SECTION 1677-8. As respects one another, in- Indorsers dorsers are liable prima facie in the order in of indorsewhich they indorse; but evidence is admissible ment.

Negotiation without in

broker.

to show that as between or among themselves they have agreed otherwise. Joint payees or joint indorsees who indorse are deemed to indorse jointly and severally.

NOTE-A made and delivered to B a promissory note to the order of B, indorsed in blank by C for goods sold by B to A on the credit of C's indorsement, pursuant to a prior agreement by C. Held, that C was liable, as a prior indorser, to B; this being the intention of the parties and B being the real creditor, and A and C the real debtors. Cady v. Shepard, 12 Wis., 713. Kiel v. Choate, 92 Wis., 517.

Indorsements by two or more persons may be joint, as where partnership or otherwise joint payees are the indorsers; and perhaps two or more persons not joint payees might qualify their indorsement so as to make their liabilities joint; but in other cases, where there are two indorsements in succession, they are several, and the rights and liabilities of the two indorsees are as defined in Linn v. Horton, 17 Wis., 151. Hale v. Danforth, 46 Wis., 554.

SECTION 1677-9. When a broker or other dorsement by agent negotiates an instrument without indorsement, he incurs all the liabilities prescribed by section 1677-5, unless he discloses the name of his principal, and the fact that he is acting only as an agent.

Presentment when necessary.

Instruments payable on demand.;

PRESENTMENT FOR PAYMENT.

SECTION 1678: Presentment for payment is not necessary in order to charge the person primarily liable on the instrument. But except as herein otherwise provided, presentment for payment is necessary in order to charge the drawer and indorsers.

SECTION 1678-1. Where the instrument is not payable on demand presentment must be made on the day it falls due. Where it is payable on demand, presentment must be made within a reasonable time after its issue, except that in the case of a bill of exchange, presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof.

NOTE-Where a sight draft on New York, indorsed to plaintiff in this state, was not mailed to New York to be presented for payment, until after fourteen days, when it was miscarried, and the second of exchange subsequently sent forward was protested, the

delay in mailing the first was prima facie evidence of laches, 23 Wis., 334.

ON THE DAY IT FALLS DUE. The cases are generally opposed to this rule. 4 Am. & Eng. Ency., 348.

ON DEMAND. A note payable on demand must be presented within a reasonable time after transfer in order to charge the indorser. Turner v. Iron Chief Mining Co., 74 Wis., 355.

Where the facts are undisputed the question whether such note was presented within a reasonable time is one of law for the court. Ibid. A delay of ten months after indorsement before presentation for payment, held unreasonable and to discharge the indorser. Id. Paper indorsed after due must be presented within a reasonable time. Corwith v. Morrison, 1 Pin., 489.

SECTION 1678-2. Presentment for payment, Sufficient preto be sufficient, must be made:

1. By the holder, or by some person autho

rized to receive payment on his behalf;

2. At a reasonable hour on a business day;

3. At a proper place as herein defined;

4. To the person primarily liable on the instrument, or if he is absent or in accessible, to any person found at the place where the presentment is made.

sentment.

SECTION 1678-3. Presentment for payment Presentment is made at the proper place:

1. Where a place of payment is specified in the instrument and it is there presented;

2. Where no place of payment is specified, but the address of the person to make payment is given in the instrument and it is there presented;

3. Where no place of payment is specified, and no address is given and the instrument is presented at the usual place of business or residence of the person to make payment;

4. In any other case if presented to the person to make payment wherever he can be found, or if presented at his last known place of business or residence.

NOTE-Temporary absence or removal of the indorser from his place of residence or usiness is no excuse for non-presentment. Wilson v. Senier, 14 Wis., 411.

Where the indorser, during his absence in England, left a general agent near his residence in this state, and his post office address in England was known to the maker of the note: Held, 1. That notice served upon such agent, or forwarded by mail to the address of the indorser in England, would have been sufficient. 2. That the holder, if ignorant of the indorser's address in England, would be bound to exercise diligence in making inquiry on the sub

at proper place.

Exhibition of instrument.

During banking hours.

In case of death.

ject, and the maker was a proper person to whom to make such inquiry. 3. That if, after such inquiry, he could not ascertain the facts, then service by leaving the notice at the indorser's last place of abode or business, or by depositing it in the post office addressed to him at his last place of residence in this state, would probably have been sufficient. Ibid.

Service at the place of business must be during business hours, but service at the residence will be sufficient if made during any of the hours when members of a household are attending to their ordinary affairs. Adams v. Wright, 14 Wis., 442.

If service of notice be promptly made at the dwelling house or place of business of the indorser, it is sufficient, although he did not in fact receive it. 14 Wis., 442.

The notary in this case testified that he had protested several notes on which the defendant was indorser, and that on one occasion, but whether on that of giving the notice herein question he could not say, he gave the notice to a boy whom he met in the defendant's yard (and who said that he was the defendant's boy), and asked him to hand it to his father; that the boy turned and went towards the house, but that he did not see him go in, as the door was not in sight from where he stood. Held, that the mode of leaving the notice thus described did not constitute a valid service of the same. 14 Wis., 442.

Held, further, that it was for the jury to determine whether the notice so left was that of the protest of the note then in suit. 14 Wis., 442.

Presentment and demand of payment of a promissory note at the abandoned place of business of the maker is insufficient to charge an indorser, if the maker has another place of business or his place of residence is known or may be ascertained by reasonable diligence. Reinke v. Wright, 93 Wis., 368.

PLACE OF PAYMENT. A presentment to the maker on the day when due at any other place is valid. Howard v. Boorman, 17 Wis., 459. This rule is changed by the above provision, according to the rule settled generally in the United States. 4 Am. & Eng. Ency., 371.

SECTION 1678-4. The instrument must be exhibited to the person from whom payment is demanded, and when it is paid must be delivered up to the party paying it.

NOTE-If lost, a copy may be exhibited, win offer of indemnity. 4 Am. & Eng. Ency., 360.

SECTION 1678-5. Where the instrument is payable at a bank, presentment for payment must be made during banking hours, unless the person to make payment has no funds there to meet it at any time during the day, in which case presentment at any hour before the bank is closed on that day is sufficient.

SECTION 1678-6. Where the person primarily liable on the instrument is dead, and no place of payment is specified, presentment for payment