Bank Of Clinchburg v. Carter.

• Decision Date: 18 May 1926
• Docket Number: (No. 5554.)
• Parties: BANK OF CLINCHBURG . v. CARTER. .
• Court: West Virginia Supreme Court

133 S.E. 370

BANK OF CLINCHBURG .

v.CARTER. .

(No. 5554.)

Supreme Court of Appeals of West Virginia.

May 18, 1926.

(Syllabus by the Court.)

Error to Circuit Court, Mercer County.

Action by notice of motion for judgment on a note by the Bank of Clinchburg against J. M. Carter. Judgment for plaintiff, and defendant brings error. Judgment reversed, verdict set aside, and a new trial awarded.

French, Easley & Easley and James S. Kahle, all of Bluefield, for plaintiff in error.

C. B. Martin and W. W. Rogers, both of Princeton, and Robey Thompson, of Abingdon, Va., for defendant in error.

LITZ, P. This is an action by notice of motion for judgment on a certain promissory note, dated December 31, 1921, for $1,540, executed by Carroll D. Carter, as maker, and indorsed by his father, J. M. Carter, payable to the order of J. M. Carter at the Bank of Clinchburg, Clinchburg, Va., six months after date. The defendant, J. M. Carter, prosecutes error to the judgment of the circuit court on a verdict in favor of plaintiff, Bank of Clinchburg, for $1,809.50. Carroll D. Carter was not served with process and did not appear. His deposition was taken in Seattle, Wash., and read on behalf of J. M. Carter, who filed the plea of non est factum and special pleas alleging that the note sued on was procured from Carroll D. Carter, maker, by fraud and duress exercised by F. P. McConnell, president of the bank, without knowledge on the part of J. M. Carter. He also pleaded the general issue.

In 1917, at the age of 16, Carroll D. Carter entered Emory and Henry College, at Emory, Va. Soon thereafter he became acquainted with one Bascomb D. Akers, a young man 5 or 6 years older, who, about 1919, became cashier of the plaintiff, a small bank in a little town about 12 miles from the college. Akers solicited the account of young Carter, who was then engaged as the college printer, and an arrangement was made between them whereby this bank permitted Carter to borrow money upon his personal notes without other security, honoring overdrafts. When he left college in June, 1921, the bank then held his note for about $600, indorsed by his father, J. M. Carter, and Dr. J. Stuart French, president of the college, which covered certain college expenses and the cost of a printing apparatus. Also at that time he owed the bank, according to his estimate, between $450 and $500 additional, representing overdrafts on his account.

About December 31, 1921, McConnell telephoned from Abingdon, Va., to Carroll D. Carter, at Mosheim, Tenn., according to McConnell, as follows:

"I called young Carter up at Mosheim, Tenn., on the telephone, and asked him if he knew how his account was at the Bank of Clinchburg, and he says, 'It is overdrawn.' 'Well, ' I says, 'Akers has been arrested; the cashier of the bank has been arrested, and is now in jail.' I says, 'It looks to me like you are in pretty serious trouble over there, and you better arrange some way to get 'this money to us'; and he said. T haven't got the money'; and I says, 'It will have to be arranged some way'; and he says, 'If my father will endorse a note, will you accept it temporarily?' And I told him I would; and he says, 'I will send you that note up tomorrow'; and this is the note we received; and this is all the conversation that took place over the 'phone."

Carroll D. Carter, testifying McConnell informed him that he had secured the arrest of Akers the night before for embezzling over $30,000 from the bank, and had a warrant also for the arrest of Carter as an accomplice, further says:

"He asked me the next thing if I knew how much money I had gotten from the bank. I told him the same as I have told you. He laughed, and named a sum around $1,540—$1,532, as I remember—whatever the statement is is supposed to be correct. He told me that itself was a criminal offense, and that a warrant was drawn up for me; that the only way for me to avoid that warrant was to get a note imme-diately. I told him my note was not worth anything. He said, 'You will have to have your father's name on this note and have it made immediately.' I told him I could not get my father's name on the note...