264 P. 852 | Or. | 1928
Lead Opinion
This is an appeal from the judgment in favor of defendant Ashley based on a directed verdict in his favor. The action was based upon an ordinary promissory note, upon the back of which was written the following:
"For value received, we hereby guarantee the payment of the written note and waive protest, demand and notice of nonpayment thereof.
"ASHLEY RUMELIN, "By C.E. RUMELIN."
The presiding judge construed the writing on the back of the note to be a collateral contract to guarantee the payment of the note. He stated:
"This action is not brought on this undertaking but is brought on the note itself. I have become convinced, after very extended argument, that Ashley Rumelin were not endorsers, as we say in the general business world. The endorsement that appears on the back of this note is not a commercial endorsement *263 by the firm of Ashley Rumelin; it is a guaranty contract and they are not sued on that contract; they are sued on the note, sued as endorsers. * * I must hold that the endorsement is one of guaranty and as they are not sued on the guaranty, of course they can not be held. There is nothing for the jury to consider. * *"
The charging part of the allegation is that
"defendants executed and delivered to plaintiff a certain promissory note payable one year after date of the following tenor, to wit";
Then follows the note in full. In order to dispose of the case it is only necessary to consider the order of the judge presiding at the trial directing the verdict. REVERSED.
This court has determined that a writing on the back of a note, of the tenor involved in the instant case, constitutes an indorsement with additional liability and is not a collateral contract to guarantee the payment of the note only: Cady v.Bay City Land Co.,
The indorsement in the instant case was a blank indorsement and was made before delivery of the instrument. This principle is further discussed at great *264
length in Case v. McKinnis,
Parol evidence is not admissible to vary the liability assumed by defendants as shown by the written instrument itself:Case v. McKinnis, above. The instrument having been set out in full in the complaint, it is the duty of the judge presiding at the trial to define the liability of the maker and the indorsers thereon.
There was a question of fact involved and that was whether or not C.E. Rumelin was authorized to subscribe the name of Ashley Rumelin to the indorsement. Their liability, if they did sign the indorsement, is fixed by statute. It follows that the court erred in directing a verdict in favor of defendant Ashley.
The judgment is reversed and the cause remanded for further proceedings in harmony with this opinion.
REVERSED AND REMANDED.
RAND, C.J., and McBRIDE and ROSSMAN, JJ., concur. *265
Addendum
The contention made by defendant Ashley and sustained by the learned circuit judge is that the indorsement on the note signed by defendants is a collateral contract or undertaking and not a direct liability on the note. This argument overlooks the fact that the indorsement was written on the back of the note and subscribed before the delivery or negotiation of the note. It was a part of the original transaction between the plaintiff and defendants. The complaint alleges that the consideration of the note was paid to the indorsers by plaintiff. The undertaking of defendant by their indorsement and guaranty was then a direct obligation to plaintiff and not collateral: Delsman v.Friedlander,
"November 20, 1893, for value received, I or we hereby guaranty (guarantee) payment of the within note, and waive demand, notice of protest, and protest." *266
The late Mr. Justice WOLVERTON wrote the opinion and in page 35 of the official Report (66 P. 298) says:
"Primarily, it may be stated as a legal proposition sustained and established by the very great weight of judicial opinion that a guaranty of the payment of a note or other obligation is an absolute undertaking to pay it when due, and that no demand or notice of nonpayment is necessary or requisite to fix the liability of the guarantor; and that mere passiveness on the part of the holder will not release such guarantor, even if the maker was solvent at its maturity, and thereafter became insolvent. (Citing many authorities.)"
And in page 37 (66 P. 299) says:
"Friedlander (the party signing the guaranty) was therefore, liable as an indorser, and this conclusion renders it unnecessary to consider the motion for nonsuit, as it is based upon the hypothesis that he was a guarantor."
It is true that Friedlander was the payee in the note and was passing the title. Under the allegations of the complaint, and there was evidence to support the allegation, defendants were also negotiating the note and received the money represented by the note instead of the ostensible maker thereof.
It is not for the court to determine the fact as to whether or not defendant Rumelin was authorized to sign the name of the partnership, Rumelin Ashley, to the indorsement on the note. That is a disputed question and should have been submitted to the jury under proper instructions. Defendants and the learned Circuit Court rely largely on the case of Noble v. Beeman,
"It may be conceded that as to the bank the plaintiff, who signed the writing on the back of the note, and the defendants in this action, all of whom signed the note as makers, were all directly liable. Such is the doctrine taught by all the cases cited in defendant's brief. (Cases cited.)"
It thus appears that the learned justice who wrote the opinion relied upon with such assurance by defendants held that in the similar indorsement in the Noble case the guarantor's undertaking was direct and not collateral. The Noble case was brought by the guarantor who was compelled to and did pay the note against the other defendants who were accommodation makers and liable to Noble for the amount he paid. It was not a case where the payee or his indorsee was suing the guarantor who had indorsed his guaranty on the back of the note. The contract between Noble and the defendants was collateral to the obligation assumed by the makers of the note and the payee therein. The learned justice does use some language in his opinion which, taken alone and wrested from its setting in the facts, supports the contention of defendants and the holding of the learned circuit judge, but when taken in the light of all of the circumstances it is not authority that one who signs such an indorsement as appears in the instant case does not assume the liability of an indorser. To the extent that the Noble case does support the contention that a guarantor who signs an indorsement on the back of a note similar to the one involved in the instant case assumes a collateral contract as guarantor only, it was overruled in the case ofCady v. Bay City Land Co.,
"We hold, therefore, that the allegation that Schiffman indorsed, transferred and assigned the note to plaintiff is sufficient to allow proof of his signature to the indorsement, unless the language `notice of protest waived and payment guaranteed,' is not to be construed as an indorsement. This is the important question in the case."
Again in page 16 (201 P. 182) the learned justice used this language:
"The language thereof does not limit, but on the contrary expands his liability into a condition where he is not entitled to notice of nonpayment or of demand on the maker for payment."
The Cady case goes on to quote with approval the language inDelsman v. Friedlander, above, and to hold that where a stranger to the instrument guarantees the payment, his undertaking would be collateral, but we cannot hold that a person or firm which signs the note or an indorsement written on the back of the note for the purpose of procuring the loan and receives the money can be a stranger to the instrument given to evince the loan. Under the allegations of the complaint in this case, which was supported by the evidence, defendants were the real parties in interest, the parties to whom the consideration accrued and for whom the ostensible maker was an accommodation party. The words "waive protest, demand and notice of nonpayment thereof" were useless in the instant case, unless defendants were indorsers. A guarantor is not entitled to notice and protest. An indorser is: Noble v. Beeman et al., above; Cady v. BayCity Land Co., above; Delsman v. Friedlander, above. Defendants' undertaking in the instant *269 case was an indorsers' enlarged by that of a guarantor.
The former opinion is adhered to. The rehearing is denied.
REHEARING DENIED.