McCallum v. Driggs

Citations

• 35 Fla. 277

Syllabus

<p>1. “A man not named as payee who puts his name on the back of a note before delivery to the payee, upon the faith of which money was loaned or credit given by the payee to the maker, is liable on it as an original promisor, although it be proved he wrote his name on the note as surety for the maker. His liability is that of a joint and several maker of the note.” (Melton vs. Brown, 25 Fla. 461, 6 South. Rep. 211.) In such a case there need be no specific allegation in the declaration that money was loaned or credit given by the payee to the maker, upon the faith of the endorsement. Substantial proof before the trial court that such credit was given, and that the note was received by the payee in part payment of the purchase money of land and other property, is sufficient to hold an endorser, under such circumstances, as an original maker.</p> <p>2. It is not necessary to prove the consideration of anote before offering it in evidence when the consideration is denied by plea; but when there is such a plea denying the consideration, the plaintiff can not take judgment upon the note alone, but must prove the consideration upon which it was given.</p> <p>3. When a defendant by plea has denied the consideration of a note sued upon, it is not erroneous for the court to permit the plaintiff to offer evidence tending to prove such consideration.</p> <p>4. The court below ruled out a question to one of the defendants and the answer thereto, as follows: “In what capacity did you place your name upon the note sued upon ? ” Answer: “As indorser,” but permitted said defendant to testify fully as to the circumstances under which said endorsement was made, and which circumstances show conclusively that he was an original maker of the note: Held, That, admitting the referee to have erred in the ruling, it was a harmless error. The incorrect legal opinion of the defendant could not have affected the judgment in the case.</p> <p>5. It is not erroneous to refuse to admit irrelevant