<p>Appeal, No. 40, March T., 1913, by plaintiff, from judgment of C. P. Lackawanna Co., June T., 1912, No. 439, sustaining demurrer to statement of claim in case of Matawan Tile Company v. Anthony F. Golden, William F. McGee, Peter C. Barrett, Thomas P. Gordon, A. N. Russo, M. Russo, Bernard F. Golden and M. C. Collins, lately trading under the firm or partnership name, style and title of Russo Brothers & Company, and the Scranton Tile Company.</p> <p>Demurrer to statement of claim in action of assumpsit.</p> <p>The note upon which the suit was based was in the following form:</p> <p>“ Scranton, Pa., Jan. 22, 1912.</p> <p>“ Two months after .date for value received we promise to pay to the order of Matawan Tile Co. $1122.84 Eleven Hundred Twenty-two and 84/100 Dollars</p> <p>At the</p> <p>Traders National Bank of Scranton, Pa. without defalcation.</p> <p>No. Scranton Tile Co.</p> <p>Due March 22, 12. A. F. Golden, Mgr.</p> <p>Endorsed as follows:</p> <p>Russo Bros. & Co.</p> <p>B. F. Golden, Mgr.</p> <p>A. N. Russo.”</p> <p>Newcomb, J., filed the following opinion:</p> <p>A copartnership by its members and a certain corporation are sued jointly. There is some lack of precision in the statement of the cause of action. On its face it is not entirely clear whether it was intended to declare on a negotiable note or an antecedent debt forming the consideration thereof. This is one of the objections taken by demurrer. The note is that of the Scranton Tile Company to plaintiff’s order, indorsed by “Russo Brothers and Company, B. F. Golden, Manager,” and by A. N. Russo. The eight defendants other than the Scranton Tile Company are alleged to have been associated as copartners under the firm name of “Russo Brothers and Company.” This concern, being a party to the note in no other way than by mere indorsement before delivery, the indorsement was irregular. At bar, and by his brief, counsel has made it clear that the suit is brought to enforce the instrument. Hence, another objection on the ground of misjoinder, which he contests on the supposed authority of Alldred’s Est., 229 Pa. 627. But that falls far short of the proposition. All that was there at issue was the question whether such indorsement created any liability, without any suggestion of joint liability with the maker. The ruling merely gave effect to the provisions of the Negotiable Instrument Act of May 16, 1901, P. L. 194, without which there would be no liability as against such irregular party. Hence, for the nature of his liability, one must turn to the statute creating it. It thus appears that he shall be hable “as indorser”: sec. 69. There can be no doubt that the term was used only in its well-defined legal sense, so that his status is for present purposes precisely that of a regular indorser, and nothing else. It follows that in the absence of anything to show an intention to vary the prima facie liability assumed by an indorser it is distinctly several, and not joint with that of the maker: Fawcett v. Fell, 77 Pa. 308; Wolf v. Hostetter, 182 Pa. 292. There is nothing in the statute to change the common-law rule on that subject. Counsel does not base his claim of joint liability on any variation by reason of the specific terms of the contract, but only on the supposed effect of the statute. And, indeed, the averments of the declaration are too equivocal to support a claim of variance by agreement. In the first place there is some confusion as to the nature of the indebtedness intended to be secured. “All of said defendants,” it is averred, “being then and there indebted to said plaintiff in the sum of 11,122.84 for tiles sold and delivered to said defendants by said plaintiff, at the several orders, instances and requests of said defendants, said defendants in order to secure the payment of their said indebtedness to said plaintiff, executed and delivered to said plaintiff, at Scranton, Pennsylvania, a certain promissory note in writing, that is to say, executed by said Scranton Tile Company as maker and indorsed by said Russo Brothers and Company,” etc. (Italics ours.) While this might suggest the existence of several liabilities owing by the respective parties for which they saw fit to unite in the security on equal terms, it will be observed that after setting out a copy the pleader goes on to say: “That accordingly said defendants when said note was executed and delivered by them to said plaintiff as aforesaid, promised and guaranteed to the payee in said note, to wit: Said Matawan Tile Company, said plaintiff, that said note would be honored and paid by them at its maturity, according to the tenor and effect of said note, that is to say, that said defendants would pay and guarantee to be paid to said plaintiff the sum of,” etc. (Italics ours.) This, if given any significance at all, implies an intention to take a note secured by indorsement; and coupled with the further averment that plaintiff was at pains to have it protested with due notice to the indorsers, seems to repel any theory of their intention to become hable as makers. Whether by themselves they could be sued jointly, is not the question here. But prima facie as between the maker and indorser of such instruments, the respective undertakings are several and not joint; so that it may be said with confidence that in order to assert a joint liability the burden would be on the plaintiff to affirmatively plead, as well as prove, their intention to become jointly bound. 'Failing to show that fact, this statement is defective, and the demurrer is sustained without prejudice to plaintiff’s right to amend on timely application.</p> <p>Error assigned was in sustaining the demurrer.</p>
