Hurlbut

The plaintiff, the defendant, and William Trebilcock became accommodation indorsers upon a promissory note for six thousand dollars, payable to the First National Bank of Central City. The plaintiff was, by suit, compelled to pay the whole thereof. He thereupon brought the present action to recover from Quigley one-third of the amount he -had thus been compelled to pay and recovered judgment in the court below. From this judgment the defendant appeals.

The complaint alleged that the Gilpin Lumber Company executed a note to the First National Bank of Central City, bearing date July 10, 1911, for six thousand dollars, and “that at the same time and as a part of the same transaction and for value received, the plaintiff, E. W. Hurlbut, and the defendant, J. R. Quigley, and one Wm. Trebilcock signed the following agreement on the back of the said note and indorsed the same as follows, to wit:

The theory of the complaint is that Hurlbut, Trebilcock, and Quigley were joint indorsers of the note, and that therefore one who paid more than his one-third share thereof had the right to sue the others for contribution. It is claimed that the evidence does not show a joint indorsement.

The…

I dissent. In view of the fact that the prevailing opinion holds that the complaint is sufficient, while the contrary opinion prevailed in Department, it seems proper to express in a dissent the view taken in Department, to which I still adhere.

In Navajo County Bank v. Dolson, 163 Cal. 485 , [41 L. R. A. (N. S.) 787, 126 Pac. 153 ], the court in Bank, speak ing through Chief Justice Angellotti, where a note had been indorsed by three persons (the defendants) before its delivery, as an accommodation to the payer, said: “It cannot be doubted that if the note was a negotiable instrument, the defendants were mere indorsers with no other liability than that of indorsers. As such, notice of dishonor or nonpayment would be essential to their liability in the absence of waiver on their part to right of such notice.” The main opinion holds that the words, “For value received I hereby waive presentment, demand and notice of protest on the within note,” converts the indorsements which would otherwise be construed as successive indorsements into joint indorsements. This view, it seems to me, does not give sufficient weight to the effect of an indorsement as provided by the law. It is…