#### Frederick vs. Winans, imp.

*March 1*

*March 24, 1881.*

*Complaint construed: Promissory Note: Indorsement.*

In an action against X. and Y., the complaint alleges that, on a day named, X., for value received, made and delivered to the plaintiff his (X.’s) promissory, note (describing it), and that “ *afterwards,*and before the maturity of the note, *and token said X. delivered the same to plaintiff,”*Y. indorsed the note. There is no other averment of the consideration for the indorsement. *Held,*

1. That the complaint must be construed as averring an indorsement by Y. *before delivery*of the note.

2. That a cause of action is shown against the indorser.

*473APPEAL from tbe Circuit Court for *GTivpjpewa*County.

Action on a promissory note, by tbe payee against tbe maker and indorser. Tbe material portion of the complaint is as follows: “That on or about tbe 26th day of July, 1875, at Chippewa Palls, Chippewa county, and state of Wisconsin, tbe defendant Ambrose B. Mannahan, for value received, made and delivered to tbe plaintiff bis (tbe said defendant Manna-ban’s) promissory note in writing, dated of that day, whereby be promised to pay tbe plaintiff or order the sum of $800, at tbe First National Bank of Chippewa Palis, Wisconsin, in one year after tbe date thereof, with interest thereon at tbe rate of ten per cent, per annum till paid. That afterwards, and before tbe maturity of said note, and when said defendant Ambrose B. Mannahan delivered tbe same to the plaintiff, tbe defendant *George JVi?ians*indorsed said note.” Due demand, notice and protest are also alleged. The circuit court sustained a general demurrer interposed by tbe indorser to the complaint; and plaintiff appealed from the order.

Tbe appeal was submitted on the brief of *Swift c& Foster*for the appellant, and that of *Jenldns & Stafford*for tbe respondent.

LyoN, J.

Tbe learned counsel for the respondent maintains, first, that tbe averments of tbe complaint show that the note in suit was indorsed after delivery thereof to tbe plaintiff, and hence that in law tbe plaintiff is the first indorser, and cannot maintain an action on tbe note against the respondent, who as to him stands as tbe second indorser; and second, that if the complaint is construed as alleging tbe indorsement to have been made after the delivery of tbe note to tbe payee, it is a mere accommodation indorsement, no consideration therefor being alleged, and the payee cannot maintain an action upon it.

1. Giving to tbe complaint the liberal construction which the statute requires (R. 8., 728, § 2668), we are constrained to think that it substantially alleges an indorsement of the note *474before delivery thereof to the payee. Obviously such was the intention of the pleader. The indorsement is alleged to have been made *when*the note was delivered. In *King v. Ritchie,*18 Wis., 554, the same language was regarded as an averment that the note was indorsed before delivery.

2. Holding as we do that the indorsement of the note before delivery is alleged, the case is ruled by the judgment of this court in *Davis v. Barron,*13 Wis., 227. The complaint in that case was substantially like the present complaint. It contained no averment of the consideration for the indorsement, yet it was held sufficient. In the opinion of the present chief justice it is said: “Obviously, a person indorsing a note before delivery thereof to the payee, intends rendering himself liable to the payee in some character and upon some ground. He must intend and design to secure its payment and give credit to the paper by placing his name upon it, even in the bands of the payee. He cannot complain if courts hold him to his contract.” This language goes further than it is necessary to go to sustain this complaint.

The above cases are conclusive of this appeal. See also *Cady v. Shepard,*12 Wis., 639.

*By the Court.*— ’The order sustaining the demurrer is reversed, and the cause remanded with directions to the circuit court to overrule the demurrer.