79 W. Va. 771 | W. Va. | 1917
The note sued on in this action, when delivered to the payee, showed on its face the names of B. B. Curry and D. E. Wilkinson as makers, and on the reverse side the names of
Nor were presentment and-notice required at the common law, as interpreted by the courts of this state; because, as Granville Curry and Johnson placed their names in blank •upon the back of the instrument before delivery, for the accommodation of the makers, the payee or his indorsee could, under the common law principles, elect to hold them as joint makers or as guarantors or indorsers. Peters v. Nolan Coal Co., 61 W. Va. 392, and cases cited. The note was negotiable at common law; the indorsements were made before delivery and above the indorsement of the payee.
But, by section 63 of the negotiable instruments act, “ a person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an in-dorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity”. And the next section adds: “Where a person, not otherwise a party to an
These details of the act clearly identify Granville Curry and Johnson as indorsers, and this identification renders certain the capacity in which they joined in executing the instrument sued on.
The uncertain status of an irregular or anomalous indorser at the common law, as interpreted by the courts of the different jurisdictions, was, as generally agreed, one of the chief inducements for the movement that culminated in the adoption of the uniform negotiable instruments law by many of the states of the Union. The varied interpretation of the relation that an indorsement in blank created, as between the apparent makers, indorsers and others, during the course of the instrument, operated as an impediment or obstruction to its commercial circulation and currency. For if, as held in this state in the case cited, the payee or indorsee of such paper had the option to treat as a joint maker, guarantor or indorser one who signed his name in blank on the back thereof, his status was one of doubt and uncertainty wherever the paper found its way in commercial transactions, because other jurisdictions gave him a different status. 3 R. C. L., §§340-47; 8 C. J., §§118 et seq.
Giving to sections 63 and 64, Ch. 98A, Code, their logical and legitimate interpretation and effect, in view of the purpose of the whole act, the conclusion seems to be inevitable that where, before delivery to the payee, a person signs his name in blank on the back of an instrument in form negotiable, otherwise than for the purpose of transferring the title,
So that, as so interpreted, and indeed as the act itself renders obvious, the persons whose names appear on the back of the instrument are indorsers. Their contract, as at common law, was upon the condition that they would pay the debt if the makers failed to pay it when due. But no liability attached unless' when presented for payment at the time and place fixed in the contract payment was refused by those primarily liable, and notice of nonpayment was communicated to the indorsers, unless waived either expressly or impliedly before or after the maturity of the instrument. §109, ch. 98A, Code.
Obviously there were negotiations among all the parties to the instrument before and after it became due, in anticipation of the makers’ inability to pay it, owing to the loss by fire of their stock of merchandise before that date. While the testimony of Granville Curry and Johnson does not in every particular agree with that of the plaintiff in regard to what was said during these negotiations, yet on some phases of the transaction there is no discord between them. Johnson says: “I told” the plaintiff “to go and see Curry and Wilkinson in regard to the matter. I think he talked with Curry in the first place and then with Wilkinson, and came back and said he was not in shape to do anything. I told him to go to Mr. Wilkinson, and if he would give us a deed of trust over something to secure us we would make arrangements and get the money and pay the note off, and we would hold the trust until they could make arrangements to pay us”. The context shows the presence of the plaintiff, Granville Curry and Johnson at the time referred to in the quotation. The evident purpose of the negotiations then in process, in contemplation of the continued liability of the indorsers, was to secure from Wilkinson a lien on his property to indemnify them as indors-ers on the note of himself and B. B. Curry. Johnson further testified: “I don-’t know as Thompson made demand of me to
These questions were propounded and the answers given on the first trial. Upon the second trial Thompson, with some modification, repeated the conversations he had with the two indorsers. “I was down here somewhere between the first and middle of December on some other business, and Mr. S. S. Johnson spoke to me concerning this note, and asked me if I had ever spoken to Mr. B. B. Curry and D. E. Wilkinson concerning the matter, whether they were going to be able to pay that note when it was due January first or not, and I told him I had not but would do so before I went away, and I did speak to Mr. Curry”. “Mr. Johnson asked me if I had spoken to them about the note, and he went on and stated to me that the note would be due January first, and he would like to find out what if anything they would be able to do with it”. This conversation was had before the note became due. After it became due, he says: “I stayed over night at the house of Granville Curry”, about three weeks after the note became due, “when we were going over to” Hamlin. “We were going over there, and we were to come together and see what could be done about the payment of this note and what kind of shape they were in”; that at that time, in the presence of plaintiff and Granville Curry, Johnson said he “did not think there was anything that Mr. B. B. Curry had they could get at, as his property was so wrapped up in mortgage liens or something like that, and that they did not think there was anything they could get at, or that he had anything they could make it out of, but Mr. Wilkinson had a lot of property that was not involved, and that they would make one more proposition and send for Mr. Wilkinson, and
While these quotations do not contain all the testimony introduced on the question of waiver, they do fairly represent what was said by the parties during the negotiations between them immediately before and after the date on which the obligation matured. And when it is remembered that, as the evidence clearly shows, the indorsers then knew the note was not paid nor presented for payment when due, the question arises' whether from the testimony there was such a waiver by them of the failure to make presentment and demand for payment and give notice of dishonor as still continued their liability in-force.
The authorities are abundant to the effect, and the statute itself indicates, that an effectual waiver may' occur either before the time for giving notice has arrived or after the omission to give due notice, and that the waiver may be express or implied; and, further, that no consideration is necessary to make it effectual. An indorser other than one who transfers 'the title can, after the instrument is due, waive proof of demand and notice, or, what is important here, ‘ ‘ he may so act towards the holder of the note as to render the fact that demand was not made or notice given wholly immaterial.” Yeager v. Farwell, 13 Wall. 6; Hoadley v. Bliss, 9 Ga. 303; Harrison v. Bailey, 99 Mass. 620; Sparham v. Carley, 8 Man. 246; 8 C. J. 698. ‘‘A parol promise by the indorser of a
The decisions in the cases cited, it is true, antedate the enactment of the. uniform negotiable instruments act; but that fact is immaterial, because the act, in addition to the recognition of the doctrine of waiver, does not attempt to determine all the details that tend to fix the liability of an in-dorser, and, in so far as applicable now, that liability remains as it was at the common law, except as modified by that act. However, whether the common law principles apply or not;
There is also the same degree of uniformity among the decisions holding unnecessary a consideration to support a waiver. Burgettstown National Bank v. Nill, 213 Pa. 456, citing numerous authorities. For additional authorities see note to this case in 5 Ann. Cas. 478. Besides, the rule seems to be general that a waiver of notice of nonpayment of a note also constitutes a waiver of presentment for payment in accordance with the implied provisions of the contract of in-dorsement. Bank v. Nill, supra; Barclay v. Weager, 19 Pa. 396; Worley v. Johnson, 60 Fla. 294; Baumeister v. Kunst, supra; Pollard v. Bowen, 57 Ind. 232; Bank v. Masson, 121 Ia. 570; Pinney v. McGregory, 102 Mass. 186; 8 C. J. 696.
It can not reasonably be contended that, because some of the statements emanating from the indorsers themselves or attributed to them by the plaintiff did not contain all the elements of a waiver because conditional, a waiver did not arise. Some of'the statements so made were not conditional. They were positive and unequivocal, and were such as to induce the belief that when made the indorsers did not intend to escape liability b3^ relying upon the delinquency of plaintiff to make presentment for payment and give notice of dishonor. They did not contradict the statement of plaintiff that they authorized him to sue on the note, and would pay whatever amount he failed to collect from the makers. That was a concession of their liability to that extent: The only attempted denial was the conclusion that they did nothing to waive their legal rights, and that denial came only upon the pressure bjr counsel after an apparent disinclination to answer the question propounded to them. “A waiver may result from implication, * * or from any words and acts which
These reasons lead to the conclusion that the judgment is erroneous, in that it discharged Johnson and Granville Curry’s estate in the hands of his executor from all liability on the instrument, though of course no judgment could be rendered against the executor jointly with Johnson and Wilkinson, because by death the action abated as to the testator and thereafter could not be revived so as to proceed jointly against all of them at the same time. Henning v. Farnsworth, 41 W. Va. 548.
• We therefore reverse the judgment, because it attempts to discharge the indorsers from liability, and render judgment here jointly against D. E. Wilkinson and S. S.- Johnson for the sum of $866, the amount of the recovery allowed by the trial court, with interest from September 11, 1915, the date of the judgment complained of, and dismiss the action as to Granville Curry without prejudice to another suit, with costs to the plaintiff in error.
Reversed, and judgment for plaintiff.