152 N.W. 657 | N.D. | 1915
(after stating the facts as above). No exception seems to have been taken to the findings of fact of the learned trial court. They, at any rate, are borne out by the evidence. The only question for determination in this case, therefore, is whether one who signs a note upon its face as ah accommodation maker, and who receives no personal consideration for the same, is primarily liable on such note as a joint maker, where at the time of such making the payee knew of the accommodation nature of his signing, and whether, when sued upon such note, such accommodation maker may plead as a defense and release that such payee had before brought suit against the defendant’s comaker, and in such suit had obtained judgment against a garnishee defendant for an amount sufficient to satisfy the note, and had compromised such judgment against said garnishee defendant for a sum merely sufficient to pay another note sued' upon at the same time and against the same original maker and a small amount upon the note upon which such Filbey and the present defendant were comakers, or whether all that he could expect in the present action would be that the amount that was left after such settlement, and after paying the note executed by the original maker alone and the costs 6f the action were paid, should be credited on the present note.
We are quite satisfied that all that the present defendant is entitled to is a credit for the money which the plaintiff actually received for credit and which he credited on the present note. This the trial court allowed, and, in our opinion, the judgment should be affirmed. When
We are satisfied that the settlement with the garnishee defendant for á less amount than the judgment obtained against it did not release the present defendant. There would unquestionably be some doubt upon this proposition if we were dealing with the common law or with the law merchant. We are dealing, however, with the so-called negotiable instruments act which has been adopted in North Dakota. That act in § 6331, Rev. Codes 1905, being § 6914, Compiled Laws of 1913, provides': “An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of talcing the instrument lenew him to be only an accommodation party.” Section 6365, Rev. Codes 1905, being § 6948, Compiled Laws of 1913, provides: “A person placing his signature upon an instrument otherwise than as maker, drawer, or acceptor, is deemed to he an indorser, unless he clearly indicates by appropriate words his intention to be hound in some other capacity.” Section 6421, Rev. Codes 1905, being § 7004, Compiled Laws of 1913, reads as follows: “A negotiable instrument is discharged; (1) By payment in due course by or on behalf of the principal debtor; (2) by payment in due course by the party accommodated where the instrument is made or accepted for accommodation; (3) by the intentional cancelation thereof by the holder; (4) by any other act which will discharge a simple contract for the payment of money; (5) when the principal debtor becomes the holder of the instrument at or after maturity in his own right.” Section 6422, Rev. Codes 1905, being § 7005, Compiled Laws of 1913, reads as follows: “A person secondarily liable on the instrument is discharged: (1) By any act which discharges the instrument; (2) hy the intentional cancelation of his signature by the holder; (3) by the discharge of a prior party; (4) by a valid tender of payment
In passing upon a similar case, the supreme court of Ohio, in the case of Richards v. Market Exch. Bank Co. 81 Ohio St. 348, 26 L.R.A.(N.S.) 99, 90 N. E. 1000, said: “The ultimate question, therefore, is': Where parties execute a joint and several promissory note all signing on the face thereof, one being in fact a surety, and the holder of the note, with knowledge of this fact, at the maturity of the note, extends the time of payment for a valuable consideration, and without the consent of the surety, is the latter discharged from liability on the note? . . . It is to be understood that here, and elsewhere in the opinion, we are dealing with the liability of an accommodation maker, who has signed on the face of the note. By the act under review, the discharge of negotiable instruments as to persons primarily liable is provided in § 3175j as follows: ‘Discharge of Negotiable Instruments. Section 3175j. [Instrument; how discharged.] A negotiable instrument is discharged: (1) By payment in due course by or on behalf of the principal debtor; (2) by payment in due course by the party accommodated, where the instrument is made or accepted for accommodation; (3) by the intentional cancelation thereof by the holder; (4) by any other act which will discharge a simple contract for the payment of money; (5) when the principal debtor becomes the holder of the instrument at or after maturity in his own right.’ The section following makes provision for discharge with respect to persons secondarily liable, viz.: ‘Section 3175k. [When person secondarily liable on, discharged.] A person secondarily liable on the instrument is discharged: (1) By any act which discharges the instrument; (2) by the intentional cancelation of his signature by the holder;. (3) by the discharge of a prior party; (4)
This holding as to the liability of an accommodation maker under the uniform negotiable instruments act seems to express the now general •opinion of the courts who have passed upon the question. See Vanderfort v. Farmers’ & M. Nat. Bank, 105 Md. 164, 10 L.R.A.(N.S.) 129, 66 Atl. 47; Cellers v. Meachem (Sellers v. Lyons) 49 Or. 186, 10 L.R.A.(N.S.) 133, 89 Pac. 426, 13 Ann. Cas. 997; Wolstenholme v. Smith, 34 Utah, 300, 97 Pac. 329; Anderson v. Mitchell, 51 Wash. 265, 98 Pac. 751; Bradley Engineering & Mfg. Co. v. Heyburn, 56 Wash. 628, 134 Am. St. Rep. 1127, 106 Pac. 170. It seems to be based upon the clear and unequivocal language of the statute, and we see no reason for refusing to adopt this now quite general holding. It is, indeed, quite important that the interpretations by the courts of the various states of the provisions of the negotiable instruments act shall be as uniform as. is now the act itself.
The fact that no personal consideration passed to the defendant Meyer, and that this fact was known to the plaintiff, makes no difference in the law. No direct consideration to him, indeed, was necessary. If a suretyship at all, the suretyship is in the form of an independent and absolute undertaking. It is a contract whereby the surety becomes bound primarily to the creditor to save him harmless independently', and whether the principal debtor makes default or not. As we have before said, we are not here construing the common law or the law merchant,' but the provisions of the negotiable instruments act.
The judgment of the District Court is affirmed.