8 Kan. 25 | Kan. | 1871
The opinion of the court was delivered by
This was an action upon an alleged guaranty of a promissory note. The note reads as follows-;
Oh the first day of May, after date, I promise to pay to the order of Scott, Kerr & Co. four thousand two hundred and eight and dollars, at their office, value received. J. T. MoWhirt.” The note was indorsed as follows: “P. Fuller & Co.”
The defendants below, Perry Fuller and Alexander McDonald, who are now plaintiffs in error, were members of the firm of “ P. Fuller & Co.” The plaintiffs below, Lncien Scott and Charlotte S. Scott, (defendants in error,) are the owners of said note. The said indorsement was made after the note was delivered to Scott, Kerr & Co-
Many exceptions were taken to the rulings of the court below, and many errors are assigned in this court; but we should judge from the brief of the counsel for plaintiffs in error that all the supposed errors of the court below are now abandoned, except certain errors claimed to have been committed by the court in charging the jury. We decide the questions raised upon these instructions as follows:
III. It is claimed that the court below erred in charging the jury as follows:
“ Tlie burden of proof is upon the defendant Fuller to show that there was no consideration for, or to support, the indorsement on the note.”
“ If the indorsement on the note was made without any consideration therefor, then the defendants are not bound thereby, and you should find a verdict in their favor. But if the indorsement was made by McDonald upon and in pursuance of an agreement between McWhirt and Scott, Kerr & Oo., that they (Scott, Kerr & Oo.) would extend the time of payment of an indebtedness, then due and existing from McWhirt to them, (Scott, Kerr & Oo.,) upon the condition that the firm of P. Fuller & Oo. would guarantee the payment of such indebtedness, and Scott, Kerr & Oo. did extend the time of payment in accordance with such agreement, then there was a sufficient consideration to support the indorsement. Or, if McWhirt, being indebted to Scott, Kerr & Co., furnished the firm of J. Í. McWhirt & Co., of which McWhirt and the defendant McDonald were members, four thousand dollars or upwards, upon the consideration or agreement that McDonald would guarantee the payment of McWhirt’s indebtedness to Scott, Kerr & Oo., and McDonald, in consideration of the money so furnished to the firm of J. T. McWhirt & Co., did indorse the note sued on, then this was a sufficient consideration to support his indorsement.”
We perceive no error in this instruction. It embodies the law upon the subject, and the evidence in the case clearly made it relevant and applicable. It says there must be a consideration for the indorsement, but that this consideration may be an agreement to"extend the time of payment of the note; and that if P. Fuller & Oo. were parties to the indorsement, it would bind them; but if instead of “P. Fuller & Oo.”it was McDonald alone who indorsed the note, the indorsement would bind him.
It is also claimed that the court erred in instructing the jury as follows:
“ The law presumes as against the defendant Fuller that the indorsement was made upon a sufficient consideration, and the burden is on him to.show the contrary; and if the testimony shows that McDonald indorsed the note, then the law also presumes as against him that his indorsement was for a sufficient consideration.”
We have already considered the principle embodied in this
“ If the indorsement was made by McDonald at the time of the making of the note by McWhirt, or at any time subsequent thereto, the law presumes an engagement on the part of the defendants of the same nature as me undertaking written by the counsel during the trial on the back of the note above the indorsement; but this presumption would not be conclusive, but could be rebutted by evidence, showing an intention on the part of the defendants not to sustain the relation of guarantors to the note, but some other relation.”
The undertaking mentioned in the foregoing instruction is as follows: “For value received, we guarantee to Scott, Kerr & Oo. the payment of the within note and sum-of money therein specified, according to the tenor thereof.” And upon this same subject the court further instructed the jury as follows:
“ I have already said to you that if McDonald wrote that signature, ‘JP. Fuller c& Go.’ on the back of the note, either at the time McWhirt made the note, or after that time, the presumption of the law is that P. Fuller & Oo. were guarantors on the note; that they undertook to guarantee its payment.”
The objection to these instructions is that they declare that the simple indorsement of the name, “ P. Fuller & Oo.,” upon this note is presumptive evidence that the firm oí “ P. Fuller & Co.” were guarantors. We do not think the objection is well taken. As we have before stated, we think that said indorsement is prima facie evidence that the parties thereto are guarantors.
It is also claimed that the court erred in instructing the jury as follows:
“ As against the makers thereof the contract made by placing the signature£ P. Fuller & Oo.’ on the back of the note read in evidence, and delivering the same to Scott, Kerr & Oo., imports a consideration.”
There is nothing objectionable in this instruction. The principle involved in it we have heretofore considered.
The jury were required to make special pleadings of fact. The seventh question upon which they were to find was as follows: “ If any agreement was made between Scott, Kerr & Oo.
We bave considered all tbe questions presented to us, and we cannot say tbat tbe court below committed any error. Dpon some of tbe questions we bave doubts; upon some of tbem tbe authorities are conflicting, and able opinions may be found on both sides of tbe question. We think, however, tbat we bave decided all tbe questions in accordance with tbe weight of tbe authority. Tbe judgment of tbe court below is affirmed.