Bromberg v. Self

• Decision Date: 12 November 1918
• Docket Number: 1 Div. 275
• Citation: 80 So. 631,16 Ala.App. 627
• Parties: BROMBERG v. SELF.
• Court: Alabama Court of Appeals

80 So. 631

16 Ala.App. 627

BROMBERG v. SELF.

1 Div. 275

Court of Appeals of Alabama

November 12, 1918

Rehearing Denied Dec. 17, 1918

Appeal from Circuit Court, Mobile County; Claud A. Grayson, Judge.

Action by Albert E. Self against Frederick G. Bromberg, as an indorser on a note. From judgment for plaintiff, defendant appeals. Affirmed.

V.F. Kilborn and Frederick G. Bromberg, both of Mobile, for appellant.

Armbrecht McMillan & Caffey, of Mobile, for appellee.

SAMFORD J.

The plaintiff was the owner and holder of three promissory notes aggregating $1,250, executed by E.O. Zadek Jewelry Company, a corporation, of which corporation defendant was vice president. One of these notes was due December 20, 1915, one January 20, and one February 20, 1916. After the December note became due and before the maturity of the others, the plaintiff demanded payment of the note then past due, but payment was not made, and at the solicitation of the company the debt was extended, as evidenced by two promissory notes, one for $600, payable in 6 months, and one for $650, payable in 12 months from date, with interest at 6 per cent. Both of said notes provided for attorney's fees and expenses of collection, and both of these notes were indorsed by the defendant.

Before any controversy arose between the parties to this suit relative to the liability of the indorser on the notes, the Zadek Company became a voluntary bankrupt under the General Bankrupt Act of the United States (Act July 1, 1898, c. 541, 30 Stat. 544 [U.S.Comp.St. §§ 9585-9656]), and, after complying with the law and acting in conformity with it, proposed a compromise with its creditors, offering a 30 per cent. dividend in full settlement of its obligations. The plaintiff did not prove his claim in the bankrupt court, relying upon the indorser, until he had been urged and induced so to do by the defendant in various letters which are in evidence, and in these letters, the defendant recognized said indorsements, and urged that the filing and acceptance of the dividend would not release the defendant as an indorser, the letters passing between the parties and their attorneys showing conclusively that the notes were proven in the bankrupt court for the benefit of the defendant in this suit, so that this defendant could have the benefit of the dividend paid on the compromise in the bankrupt court. The plaintiff did receive the 30 per cent. dividend, and applied the same on the notes, and demand was then made on this defendant for payment of the balance.

In various letters, after the Zadek Company had gone into bankruptcy, and while the defendant was trying to induce plaintiff to make proof of his claim, the defendant recognized his obligations as an indorser and his desire to get credit for the 30 per cent. dividend for his own protection. In one of his letters, the defendant wrote:

"I recognize the indorsement which I made, and of course there can be no evasion of it. I want Mr. Self to file his claim so that he might get the 30 per cent. dividend to reduce the amount of my responsibility."

Besides this, there was abundant evidence to support the contention that there was no...