Kimbroe vs. Lamb, 3 Hum. 17

TuRLEY, J. delivered the opinion of the court. The defendant is a payee of a note executed by John W ebb, which he endorsed to the plaintiff. The endorsement was in blank, and there is proof tending to show, that at the time it was made, the defendant gave the plaintiff authority to fill it as might best suit his interest. It was filled waiving demand and notice.

The court charged the jury, “that they could not enquire into the intention of the parties at the time the note was sold; and that if defendant agreed with the plaintiff that the assignment should be filled up by him as he saw proper, and it was filled up waiving demand and notice, the defendant would not be bound thereby.” This charge is erroneous; if defendant intended to give plaintiff the power to fill the endorsement waiving demand and notice, he is as much bound by it as if he had done it himself, and the jury ought to have been permitted to determine the fact. This they were not permitted to do.

The judgment will, therefore, be reversed, and the case remanded for a new trial.