165 Mich. 460 | Mich. | 1911
Plaintiffs were guarantors or sureties for one George Love to secure the faithful performance of a certain contract between him and a medical company, which had agreed to furnish him as its salesman certain medicines, extracts, etc., upon certain terms and condi
*462 “600.00.
“Texas, Kalamazoo County, Mich.,
“Sept. 30,1908.
“ On or before one year after date, I promise to pay to R. A. Hunter or order six hundred dollars with interest at the rate of six per cent, annually from date. Yalue received.
“Payable at Kalamazoo, Mich.
“O. M. Love.”
With following indorsements on back:
“As sureties,
“C. A. Lamberson,
“ J. C. Bogard.”
“ Without recourse on me.
“R. A. Hunter.”
At the close of plaintiffs’ case, defendant moved for an instructed verdict, for the following reasons:
(1) Want of consideration for the note.
(2) That it was in fact plaintiffs’ obligation for their benefit.
(3) Defendant was an accommodation maker for plaintiffs’ benefit, and, having paid their own obligation, they could not recover from him.
This motion was granted, a verdict for defendant was accordingly returned, and upon it a judgment was entered.
But one question is raised in this court by appellants. They contend that the court erred in directing a verdict.
It is clear that at the time these parties met, and the note in suit was made, defendant was in no way related to or obligated upon the contract with his son George upon which suit had already been brought. It is undisputed that defendant received no consideration when he signed the note. The testimony shows why plaintiffs were there. Lamberson testified:
“It was for the purpose of getting this obligation that we had been sued upon settled, that we went out to Mr. Love’s farm.”
Plaintiff Bogard testified:
*463 “We went out there for the purpose of getting this settled, and signed this note for the purpose of settling, so as to be relieved from this suit which had been started by the Eawleigh Medical Company. Mr. Love had agreed to settle this before. That was why I went out there; that is after the suit had been started against us. My only interest in this matter was to be relieved from the suit started against us so that we would not have to pay the $680. Mr. Love wanted us to sign the note, but we didn’t care about what Mr. Love wanted unless we were relieved from this obligation. Our sole purpose in signing this note was to get relieved from this suit.”
The record shows that the note was not signed by defendant at the request of the agent, Hunter, nor upon his agreement to discontinue the suit against plaintiffs. Nor was the money obtained by Hunter at the bank upon the note in suit.
Plaintiffs at the bank borrowed $600 on their note, paid it to Hunter, who indorsed the note to them without recourse, und surrendered to them their obligation to his company. These facts have been repeated to make clear the relations between the parties to this suit upon the note plaintiffs have paid. It is clear to us that this transaction was for their benefit. The consideration was moving to them. Their liability was reduced $81, and the suit was discontinued. In paying their note at the bank, they paid their own obligation. It follows that defendant upon this note was an accommodation maker for their benefit. This is shown by the evidence.
The weight of authority is that the relations and liabilities of the parties to accommodation paper may be shown by-parol evidence, and it may be shown that a person who is apparently liable only secondarily on the instrument is in fact the principal debtor. 1 Am. & Eng. Enc. Law (2d Ed.), p. 343.
It is settled law that the payment of accommodation paper by the party accommodated discharges the instrument. This is also now the express provision of our negotiable instruments law. Act No. 265, Public Acts 1905, § 121.
The trial court was not in error in directing a verdict for defendant.
The judgment is affirmed.