#### C. W. Andrews v. Ora J. Butler.

Negotiable Instruments—Note—Action Against Indorser—Waiver of Right to Deny Indorsement—Insolvency of Maker—Sufficient Evidence of.

1. In an action on a promissory note by the holder against the indorser, where the defendant denied the indorsement, it is held, that the action of the defendant, after he had been informed of the fact of the indorsement made by his alleged agent, was such as to estop him from denying the indorsement, in an action by a bona fide holder.

2. Tire insolvency of the maker having been apparently tacitly admitted in the tidal court, held, that the record contained enough evidence on that point to sustain a verdict against the indorser.

[Opinion filed April 11, 1892.]

Appeal from the Circuit Court of Montgomery County; the Hon. J. J. Phillips, Judge, presiding.

Messrs. Henry & Gwinn, for appellant.

Mr. Charles W. Bliss, for appellee.

Mr. Justice Wall.

This was a suit by Butler against Andrews to recover the amount due upon a note made by one Williams to Andrews and by the latter indorsed, as alleged. The case was tried by the court without a jury by consent. The finding was for the plaintiff and judgment *184passed accordingly for §54.40. The defendant denied the indorsement, and the first question is upon the issue thus made.

It appears the indorsement ivas actually written by one Hicks, avílo was the agent of AndreAvs' for collecting-notes and claims due him. It may he admitted that Hicks had no specific authority to make this indorsement, yet we are inclined to think that AndreAvs by his conduct after learning of the indorsement has estopped himself from making the defense. He insisted that the indorsement should have been Avithout recourse, and after hearing that it had been indorsed Avith recourse he Avent to the holder of the paper and had some conversation Avith him in Avhioh it appears it aatis-admitted a mistake had been made and there Avas something said about correcting it, but it Aims not done, and the note in this condition Avas permitted to remain in the hands of the purchaser, aa4io soon after traded it to another, and he in turn traded it to Butler. Butler bought on the strength of Andrews’ indorsement, knoAAdng the maker Avas not good, and gave Avalué for it in trade. AndreAvs by his oavu act, after he lcneAV the character of the indorsement, suffered the note to remain in that condition until it passed to a bona fide holder. He should not be alloAved to deny the indorsement.

It is urged also there is no proof that the maker of the note Avas insolvent and that a suit against him would be unaA'ailing. EAddently this point Avas conceded in the trial beloAv. It Avas tacitly admitted all the Avay through that Williams Avas insolvent, and Butler so expressly testified, but as he spoke in the present tense, it is insisted that it Avas thereby merely proAred it Avas so at the time the testimony Avas delivered, hut he testified also he kneAV Avhen he traded for the note that Williams Avas not good and that he took it on the strength of the indorsement. In all the testimony it is clearly implied that the note Avas Avorthless but for the indorsement; no less is this so in the testimony of AndreAvs himself. Had there been any purpose to contest this point in the trial court, the proof Avould have been quite different. *185We have no doubt it was not disputed that a suit against the maker would have been unavailing. The proof contained in the record should suffice in the absence of anything to the contrary.

The judgment will be affirmed.

Judgment affirmed.