American Wholesale Corporation v. Bryant

• Decision Date: 13 October 1924
• Docket Number: No. 4296.,4296.
• Citation: 2 F.2d 31
• Parties: AMERICAN WHOLESALE CORPORATION v. BRYANT.
• Court: U.S. Court of Appeals — Fifth Circuit

2 F.2d 31 (1924)

AMERICAN WHOLESALE CORPORATION v. BRYANT.

No. 4296.

Circuit Court of Appeals, Fifth Circuit.

October 13, 1924.

Jas. L. Mayson, of Atlanta, Ga. (J. S. Watkins and P. C. O'Gorman, both of Augusta, Ga., and P. E. Johnson and Mayson & Johnson, all of Atlanta, Ga., on the brief), for plaintiff in error.

Orville A. Park, of Macon, Ga., and W. W. Abbot, Jr., of Louisville, Ga. (M. C. Barwick, of Louisville, Ga., Jones, Park & Johnston, of Macon, Ga., and Phillips & Abbot, of Louisville, Ga., on the brief), for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER, Circuit Judge.

This was an action by the plaintiff in error, American Wholesale Corporation (herein referred to as the plaintiff), against P. R. Brown and C. S. Bryant on a note dated October 28, 1919, for $10,000 and interest from date at 8 per cent., payable on demand to C. S. Bryant Company, or order, signed by David Brown, and indorsed by "C. S. Bryant Company, by C. S. Bryant, Pres.," and, below that indorsement, by C. S. Bryant, who is herein referred to as the defendant.

Defendant's answer to the petition contained averments to the following effect: Defendant admits that his name was written by him on the back of the note. After the execution of said note, and after it was due, the C. S. Bryant Company, desiring to use it as collateral with the Georgia Railroad Bank of Augusta, Ga., procured defendant to indorse said note solely for the purpose of securing a loan from said bank. When that loan was repaid, said note was returned to the C. S. Bryant Company. Inadvertently that company, by some of its officers or agents, forwarded said note to plaintiff without having erased therefrom the indorsement of defendant, and there was no purpose or intention upon the part of the defendant to become surety or indorser for the C. S. Bryant Company or said Brown to the plaintiff; nor was there ever any agreement or contract upon the part of the defendant to become surety or indorser to the plaintiff. Even if defendant's name had been placed upon said note as accommodation indorser, the undertaking by him was without consideration and void.

There was judgment for the full amount of the note with interest against Brown, who made no defense, and who, so far as appears, never claimed or had any defense. At the conclusion of the evidence the court instructed a verdict in favor of the defendant. There was judgment pursuant to such verdict. The action of the court in giving the above-mentioned instruction is duly presented for review.

There was evidence to the following effect: On January 5, 1921, the note sued on, containing the above-mentioned indorsements, was sent with a letter of that date from Bartow, Ga., to the plaintiff at Baltimore, Md. The following is a copy of that letter, omitting the date and address:

"We want to know if we can get you to give us an extension until next fall for $10,000 of our account, with the inclosed paper as collateral. This party, Mr. P. R. Brown, has been one of our largest customers, but, making a short crop for the past two years, has gotten behind with us. Farmers in this section have not sold any of their cotton to amount to anything on account of the low prices, which causes us to have out quite a bit of money on our books, but we feel that it will all come right when cotton begins to move. We hope you can see your way clear to handle this paper for us.

"Yours very truly "csb/v. The C. S. Bryant Co."

When that letter was written, the C. S. Bryant Company (most of the stock of which was owned by the defendant, who was its president and general manager) was indebted to plaintiff in the sum of about...