124 P. 286 | Okla. | 1912
This is an action originally brought by the Farmers' National Bank of Tecumseh, defendant in error, against W. H. McNary and T. J. Folwell, plaintiffs in error, in the probate court of Pottawatomie county, on two certain promissory notes of $150 each, dated March 15, 1905, and made exhibits to the petition. Both were signed by defendants and made payable to M. H. Tennison, or order, on July 1, and August 1, 1905, who indorsed them to plaintiff thus:
"For value received I hereby guarantee the payment of the within note at maturity, or at any time thereafter, with interest at the rate of ___ per cent. per annum until paid. Waiving demand, notice of nonpayment and protest, as collateral. [Signed] M. H. Tennison."
For answer Folwell, after general denial, admitted the execution of the notes and that they were indorsed as stated, but denied plaintiff to be the owner thereof. For answer McNary pleaded, among other things, a general denial. After reply filed, there was a trial to a jury and judgment for plaintiff in said court, and also, on trial anew, in the district court, to which the cause was appealed, and defendants bring the case here. To maintain the issues on its part, plaintiff proved by Tennison, the payee in the notes, that, before maturity and to secure present indebtedness and future advances, he had pledged said notes, then signed only by McNary, to the bank as collateral after indorsing them, presumably as stated in the petition, after which, for value, Folwell assumed their payment and signed them as principal, making McNary surety; and that the same were due and unpaid. On cross-examination he testified that at the time this *3
suit was brought the bank had possession of the notes, but that at the time the witness was testifying the bank was not the owner or holder therefor, for the reason that pending the suit he (Tennison) had paid off his indebtedness to the bank for which the notes were pledged, whereupon they were delivered to him by the bank, and "that they were lost, I suppose in the court here; I don't know where they are" — and rested, whereupon defendants demurred to the evidence, which was overruled, after which both sides introduced other and additional evidence. When this is the state of the record, if, considering all the evidence, insufficient evidence was introduced to make out a case for plaintiff, the court erred in overruling said demurrer; otherwise not. Meyer et al. v. White,
Further in support of their demurrer, defendants contend that the bank is not the owner of the notes, and therefore not the real party in interest, because, they say, the indorsement on the notes was legally insufficient to carry the title thereto from *4 Tennison to the bank. Not so. Precisely this contention was raised in Robinson v. Lair, 31 Iowa, 9. The court said:
"It is insisted that the writing on the back of the note, as follows: "For value received, we guarantee the payment of the within note, and hereby waive demand, and notice of nonpayment' — does not amount to an indorsement of the note, and does not express an intention to convey the title from payees to plaintiff. We confess ourselves unable to give effect to the contract of guaranty of payment, and waiver of demand and notice, if the payees still intend to retain the title. The writing simply constitutes an indorsement, with an enlarged liability."
In Kellogg v. Douglas Co. Bank,
"For value received we hereby guarantee payment of within note at maturity, waiving demand, protest, and notice of protest. [Signed] M. D. Ewing, Cashier."
The court said:
"The indorsement to the Chemical National Bank was sufficient, it was placed on the back of the note, and, while it was a guaranty of payment, it was also an indorsement of the note. The guaranty itself would be senseless and wholly inoperative, unless the note was transferred by the payee to a third party. Such indorsements are not at all uncommon. * * * This was both a guaranty and an indorsement, which passed a full title to the note. 2 Daniel on Negotiable Instruments (4th Ed.) 1781; Robinson v. Lair, 31 Iowa, 9; Heard v. DubuqueCounty Bank,
See, also, Judson v. Gookwin,
The notes were originally given by McNary to Tennison in payment for some ice which was sold; after the pledge of the notes to the bank, by McNary to Folwell, who assumed the debt as stated. Recognizing the doctrine that these notes were pledged by Tennison to the bank as collateral to a debt due the latter and were nonnegotiable and subject to the equities existing between the original parties, the court permitted defendants to plead and introduce testimony resisting payment on the ground that the notes were procured by fraud in the sale of the quantity and quality of the ice. On this issue the jury found in favor of the bank, and upon the refusal of the court to sustain defendants' demurrer to the evidence, returned a verdict for the bank for the full amount of the notes including interest, and that, too, in the face of the uncontradicted testimony that the bank had been paid its debt to secure which the notes were pledged as collateral.
In support of their same assignment, defendants contend that in view of the fact that its debt had been paid, the bank was entitled to recover nothing, and that said motion should have been sustained. Again not so.
Logan v. Cassell,
"It is true the court charged that, if the plaintiff purchased the notes, he could recover their full amount; but, if he held them as collateral, he could recover only the amount due him on the original debt. So far as this goes, it was correct under the authority of Appleton v. Donaldson,
In Green v. McAuley,
In First Nat. Bk. v. Mann,
"There is another feature in the case that it is material to mention. It appears from the proof that pending this litigation the debts due the bank and Wolfe have been paid, for which this note was pledged as collateral, and neither the bank nor Wolfe has now any interest in the recovery. Still, under the law, notwithstanding the principal debt has been paid pending suit on the collateral, such suit may properly continue to judgment, and, if the holder collect the same, he will hold it as trustee for the benefit of the debtor; that is, the owner of the collateral. Jones, Pledges, sec. 664; Logan v. Cassell,
There was no reason for the suit to abate by the transfer of interest in the note, occasioned by its payment, from the pledgee to Tennison. If by its own vigor it might not of right continue, such it could do by reason of Comp. Laws 1909, sec. 5572; and such was the holding of the court. *7
As the next error is alleged to be the admission in evidence, over objection, of the record in a certain suit wherein McNary sued Tennison in damages alleging fraud in the sale of this same ice, and wherein it is said he failed to recover, for the reason that said evidence is not attempted to be abstracted, as required by rule of court, we refuse to consider it, especially as an attempt to do so on our part might prove futile, since we are referred to the pages of the record for the record in that case which we find contain no journal entry. Neither, for failure to comply with said rule, will we consider whether the court erred in certain instructions to the jury.
Finding no error, the judgment of the lower court is affirmed.
HAYES and KANE, JJ., concur; WILLIAMS and DUNN, JJ., absent, and not participating.