Harmon v. Moffitt

Decided October 20, 1868

District of Columbia Court of Appeals · decided 1868-10-20

The Facts are sufficiently stated in the opinion. The evidence of the contract for the sale of lumber, and of the giving a note in payment therefor, which the defendant below admitted by his demurrer to the evidence, was evidence on which no judge would have been justified in directing the jury to find lor the defendant. The plaintiffs have declared against the defendant as endorser, and sue also upon the common counts.

Decided 1868-10-20

Mr. Justice Olin,

¶1dissenting, said:

¶2I think it pretty well settled law that, if the defendant be sued as indorser he can not be sued in any other capacity —as an original party or otherwise. The note given concluded the contract of sale, and was evidence of its character. I do not concur that a promise of the indorser to pay the note after maturity, is evenpnma/acie evidence of the waiver of the indorser’s right to take notice of the maker’s default, unless the indorser was aware that he was discharged of his obligation to pay at the time he made the promise; such prom-was void, as made under a misapprehension of facts, and certainly could not be made the foundation of an action on a promissory note.

¶3Judgment affirmed.