Williams v. Durst

25 Tex. 667 | Tex. | 1860

Wheeler, C. J.

The plaintiff, in instituting his suit upon an account for money paid for the use of the defendant’s intestate, proceeded on the ground that he was an accommodation endorser of the notes mentioned in the petition, and paid them as surety for the makers. And the charge of the court appears to proceed upon the same idea. But this is not the case made out in evidence. There is no evidence that Durst endorsed the notes for the accommodation of the makers. ’ They are made payable to his order and by him endorsed in blank. If by his endorsement he transferred the notes, and afterwards paid and took them up, he then stood in reference to the maker in the same attitude as if he had never parted with them. His remedy was upon the notes, and not upon an account for money paid to the use of the maker, and it cannot be doubted that the statute of limitation would bar the right of action at the expiration of four years from the maturity of the notes. The contract between the maker and payee or first endorser is, that the former will pay the note according to its tenor and effect. The obligation is created by the contract; the right of action is upon the contract; and the statute of. limitations will bar the action of the payee against the maker, although the former, after the expiration of the period of the statutory bar, paid the note, and thus became re-possessed of it. (Woodruff v. Moore, 8 Barb. N. Y. Sup. Ct. R., 171.)

Even in the case of an accommodation endorser of a promissory note, it has been held that if he pay the note he cannot recover from the maker upon the money counts, but must sue oil the note; and if the note be barred by the statute he cannot recover, although he may have paid the amount to the holder before the bar of the statute had interposed. (Kennedy v. Carpenter, 2 Wharton, 344; Ang. on Lim., § 100.)

In the case of an accommodation acceptor of a bill of exchange, it has been held that the statute begins to run from the time of payment. (Ib.) But it is plain that the payee of a note who does not appear to have endorsed it for the accommodation of the maker, which is the case here, has his right of action only upon the note, and the statute begins to run from its maturity. Upon the evidence the action plainly was not maintainable upon the account for money paid; and if the suit had been upon the notes, the statute commenced to run, not from the time of payment, but from the time when the notes respectively became due and payable. The law of the case was misconceived by the court in the charge to the jury, and in the ruling refusing a new trial.

A new trial ought to have been granted upon another ground. The deposition of the witness Borden was not competent proof of the execution and contents of the mortgage. If the affidavit of its loss by the attorney was a sufficient foundation for the introduction of secondary evidence of its contents, still tlie evidence wholly fails to connect the mortgage with the notes in question, or to show upon what account or to secure what debt'it was given. It was manifestly insufficient to support a verdict and judgment for the foreclosure of the mortgage.

The judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.