Farmers' Bank v. Ewing

| Ky. Ct. App. | Jan 27, 1880

CHIEF JUSTICE PRYOR

delivered the opinion of the court.

The appellee, J. R. Ewing, being the holder and payee of a note executed to him by James..H. Jewett and others, negotiable and payable at the-Fayette National Bank, indorsed it for value to the Farmers’ Bank pf Kentucky before its maturity, and when the note became due, the parties failing to pay, the Farmers’ Bank .instituted the present action against the obligors and. .the indorser, alleging that the •appellee, as indorser, had waived notice of dishonor by his indorsement on the note. The indorsement is:

“Pay to Farmers’ Bank of Kentucky, value received.

“J. R. Ewing.”

On the back of the note ..there., also appears this printed matter: “The indorsers waive presentment, protest, and notice of dishonor.” This iirdors.enaent is not signed by the appellee, and is entirely disconnected from the indorsement to which his signature appears. The appellee, for answer to the petition, denies that he waived presentment, protest, and notice of dishonor, and claims that he is not liable by reason •of the want of protest, notice, &c.- The law and facts having been submitted to the court, a. judgment was rendered for the defendant Ewing.

It was admitted on the hearing that when the note was presented by the indorser Ewing and discounted by the bank, it had upon the back thereof the printed words as they now • appear, and also his written assignment thereon; and the only question in the case is, did the printed matter form any part of the contract between the indorser and the bank ?

If the words relied on as a waiver of the rights of the indorser had been written by the latter at the time it was discounted by the bank, there can be no doubt but that it must, be regarded as constituting a part of the contract, and if so, we see no reason why the printed matter, if on the paper at' the time he indorsed and discounted it to the bank, should not have the same effect. The only evidence is, that this, printed matter was there when the paper was delivered, and. if so, the bank had the right to regard it as a part of the--contract of indorsement. It relates directly to the liability of the indorser, and if found on the back of the paper, must be considered as much a part of his obligation as if inserted, on the face of the paper assigned. The note is made payable to the appellee, who has indorsed it to the bank, with, the statement upon it that the indorsers waive notice of presentment, protest, and notice.

It must be presumed that the parties knew of the memorandum when the contract of indorsement was executed and when on the paper at the time of the indorsement it. cannot be disregarded because of the ignorance of the appellee as to its legal effect. Daniel on Negotiable Instruments says:

‘ ‘ It seems that the purport of the instrument is not only to be collected from the four corners, but from the eight corners; a memorandum on the back affecting its operation, being regarded the same as if written on its face.”

While this may be stating the rule too broadly, it must nevertheless be presumed that the parties regarded the-printed matter as part of the contract, so far as it affects, the indorser, and as a waiver of the latter’s right to notice. That which is written on the back of the note, as well as. that written on the face, if relating to the contract, becomes, a part of it and a construction given the whole instrument in order to determine the liability. (Daniel on Negotiable Instruments, pages 121 — 22.) This of course has reference to-what appears on the note at the time of its execution and. delivery, and not to subsequent alterations or memorandums, placed upon it. The payee,in this case, who is also the indorser, has restricted his rights by releasing the holder from the necessity of giving any notice as to the non-payment or-dishonor of the paper. Any words written on an instrument, which qualify and restrain its operation, constitute a part of the contract. (13 Pickering, 168.) The word facilities written on the margin of a note was held to constitute a part of the note. (14 Mass., 722.)

The words foreign bills written underneath the note were-held to constitute a part of it. (Jones v. Fales, 4 Mass., 245" court="Mass." date_filed="1808-03-15" href="https://app.midpage.ai/document/jones-v-fales-6403202?utm_source=webapp" opinion_id="6403202">4 Mass., 245.) The rule is, that the construction is to be upon the-whole instrument, as well that which is written on the back-of the note as that upon its face. (Barnard et al. v. Cushing and others, 4 Metcalf, 233, Mass.) In the case of Williams v. Handley (3 Bibb) this court said: ‘ ‘ That all the authorities agree that when any matter is underwritten or indorsed on the deed at the time it' is executed, it becomes a component part of the deed and may be so treated in pleading.” There is no issue really presented by the appellee in this, case. It is conceded that the indorsement and memorandum in regard to the waiver :of notice,- &c., was on the paper when delivered to, and discounted by, the bank. The appellee was both indorser'and payee, and while he may not have regarded the printed matter as forming any part of the contract of indorsement, parol evidence is inadmissible to-show that fact with a view of changing the legal effect of the indorsement so as to prejudice the rights of the bank.

Judgment reversed, and cause remanded for further pro■ceedings consistent with this opinion.