Mersman v. Werges,
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112 U.S. 139 (1884)
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U.S. Supreme Court
Mersman v. Werges, 112 U.S. 139 (1884)
Mersman v. Werges
Argued October 17, 1884
Decided November 3, 1884
112 U.S. 139
The addition of the signature of a surety to a promissory note, without the consent of the maker, does not discharge him.
A mortgage executed by husband and wife of her land, for the accommodation of a partnership of which the husband is a member, and as security for the payment of a negotiable promissory note made by the husband to his partner and endorsed by the partner for the same purpose, and to which note the partner, before negotiating it, adds the wife's name as a maker, without the consent or knowledge of herself or her husband, is not thereby avoided as against one who, in ignorance of the note having been so altered, lends money to the partnership upon the security of the note and mortgage.
Under the Act of March 3, 1875, c. 137, the circuit court has jurisdiction of a suit between citizens of different states to foreclose a mortgage made to secure the payment of a negotiable promissory note of which the plaintiff is endorsee, although the payee and mortgagee is a citizen of the same state with the defendant.
This is a bill in equity, filed in the Circuit Court of the United States for the District of Iowa by Joseph J. Mersman, a citizen of Missouri, against Caspar A. Werges and wife, citizens of Iowa, to foreclose a mortgage of her land in Iowa, executed on September 1, 1870, by the husband and wife to E. H. Krueger, likewise a citizen of Iowa,
"to be void upon condition that the said Caspar A. Werges shall pay to the said E. H. Krueger the sum of six thousand dollars as follows, viz., one year from date, with ten percent interest thereon, according to the tenor and effect of his promissory note of even date herewith."
The bill originally set forth the note as signed by both husband and wife, but, after the coming in of the answer, was amended by leave of court so as to allege it to be the note of the husband only. The case was heard upon pleadings and proofs, by which it appeared to be as follows:
The husband and Krueger were members of a partnership engaged in carrying on a mill, Krueger being the active partner, and Werges and his wife living on a farm which belonged
to her. The plaintiff agreed with Krueger to lend to the husband, for the benefit of the partnership, six thousand dollars on the security of the farm, and the wife agreed, for the accommodation of the partnership, to execute a mortgage of the farm. The husband signed a note, payable to Krueger, or order, and corresponding in terms with the mortgage, and the husband and wife executed the mortgage, and delivered the note and mortgage to Krueger. While they were in Krueger's hands, the name of the wife was subscribed to the note, under that of the husband, by Krueger or by his procurement, without the knowledge or consent of either husband or wife. Krueger endorsed the note, and delivered the note and mortgage to the plaintiff, who thereupon, not knowing that the wife had not herself signed the note, advanced the money to him for the partnership. The circuit court held that the addition of the wife's name to the husband's note was a material alteration of the note, and made void the mortgage, and dismissed the bill. See 3 F. 378. The plaintiff appealed.