Brown v. Wilson

• Decision Date: 09 January 1896
• Citation: 23 S.E. 630,45 S.C. 519
• Parties: BROWN v. WILSON et al.
• Court: South Carolina Supreme Court

23 S.E. 630

45 S.C. 519

BROWN v. WILSON et al.

Supreme Court of South Carolina

January 9, 1896

Appeal from common pleas circuit court, Abbeville county; Buchanan Judge.

Action by Charles D. Brown against George S. Wilson and others. There was a judgment for plaintiff, and defendant G. S Wilson appeals. Affirmed.

Where judgment is rendered against several defendants, some of them having appeared and pleaded to the action, and others made default, this court will not, on the appeal of those appearing to the action, look at objections to the sufficiency of the service on those making default.

The charge of the court was as follows: "Mr. Foreman and Gentlemen of the jury: I am asked to charge you: '(1) That when a promissory note matures it is necessary to present it to the maker for payment, protest it for nonpayment, and give notice of such protest to the indorser before he can be made liable upon it, and that, therefore the plaintiff in this action must prove that at the time the note in suit became payable (that is, on the third day after its maturity) he presented it, or caused it to be presented to D. A. Allen, for payment, had it protested for nonpayment, and gave notice of such protest to the defendant, George S. Wilson, before he can recover against the said George S. Wilson.' Well, I so charge you, gentlemen. '(2) That if the jury believe from the evidence that the plaintiff accepted the notes, without indorsement, in payment of the debt due on the Beacham note and mortgage, any subsequent promise by the defendant to pay the notes was without consideration and void.' I refuse to charge you that, gentlemen, in those words, but will modify it in these words. The words interpolated, 'made upon another and separate contract, mean that if the jury believe that the plaintiff accepted the notes, without indorsement, in payment of the Beacham notes and mortgage, upon a separate contract by the defendant, then the consideration is void.' If the agreement was part and parcel of the transaction leading up to the indorsement, that this indorsement should be signed, then the indorsement is as much a part of the transaction as anything else. '(3) That, if the jury believe that Brown purchased the note before any indorsement was made upon it, then the fact that Wilson afterwards told him the indorsement was all right would not now estop Wilson from claiming that the indorsement was not authorized by him.' I refuse to charge you that. I charge you as follows: 'That if the jury believe that Mr. Brown purchased the note before any indorsement was made upon it, when such indorsement was not to be made originally, and was not part of the transaction, then the fact that Mr. Wilson afterwards said it was all right would not now estop Wilson.' Well, gentlemen, if you and a party enter into a contract, and he signs and you do not, and you write to somebody else to sign for you, and, after returning, you say that is all right, 'I did not do it myself, but it is all right,' it becomes as binding as if he had done the writing himself. If you find that Mr. Frank Wilson was authorized by Mr. George Wilson, or it was the usual custom for him, to sign for Mr. George Wilson, and that he did not need any special authority for this particular occasion,--if at the time he signed it for Mr. George Wilson he was complying with a custom that had grown up, and he signed it, and it was afterwards ratified by Mr. Wilson,--it would be as binding as if Mr. Wilson had signed it himself. Now, suit is on a promissory note. A note carries on its face a consideration,--so much so that when it is assigned to a third person the original party will not be allowed to attack it. The plaintiff says, by reason of such indorsement, the defendant undertook to assume the debt of the other party. Now, you will remember what was said, and it is for you to say what they meant. The defendant says he did not become the indorser, and that it was not indorsed by him or by his authority, but by Mr. Frank Wilson, a clerk in his store, and that he so told Mr. Brown; and in reply to this the plaintiff says that, although it is true that Mr. Frank Wilson did sign, the defendant afterwards came into the office, and said that it would be all right, and really assumed the debt. The defendant denies that. Now, did Mr. Brown take this note on the faith of Mr. Wilson paying it? Was this a part of the transaction, and was Mr. Brown's statement a true one, or Mr. Wilson's statement true? That is a matter of evidence, gentlemen, for you to decide. Where a note is in the hands of a bank, notice of protest must be given, else the right of action will be gone. This is given to fix the liability on the indorser, and to keep the bank, or whoever has possession of the note, from being liable to the party who put it there; but such notice is not necessary to the maker, because the law says that he gave it with the understanding and with the notice that it would be due at that particular time, and that he knew that it would be there. But, if the party assumes the liability, the mere primary obligation he thus assumes,-- the payment of the note, and the name of the payee of the note sued on,--a notice of protest would not necessarily relieve the party. Of course, if the defendant was liable as an indorser simply, we may infer from the testimony, if there is any testimony to that effect, that such statement or protest was made; but you must have some evidence of it, gentlemen. It must be so stated to you that you can legitimately infer it. Now, who are you to believe? The testimony is all before you. The law says that, where there is a conflict of testimony, it is for you to reconcile that conflict, and say who is mistaken and who is not mistaken. If there is a direct contradiction, it is for you to say who you will believe. The law says that, when one indorses a note, it is presumed it is for a valuable consideration. Now, you heard all the testimony here. It is all a question of fact for you. I am not allowed to charge you on facts. I give you the law, and you apply the facts to the law, and find your verdict accordingly. If you find for the plaintiff, you will find for the plaintiff so much, making a lump sum; and, if you find for the defendant, say, 'We find for the defendant."'

The jury found a general verdict for the plaintiff, and judgment was entered thereon against George S. Wilson, as follows, upon which there was judgment entered up against the defendant Wilson only. The defendant then made a motion for a new trial on the minutes of the court, on the ground that the verdict was a general one against all the defendants, when the record showed that only the defendant Wilson had been served with the summons and complaint, and also on the ground that the jury had disregarded the charge of the court, there being no testimony that the note had been protested for nonpayment, and the court having charged that protest was necessary to bind the defendant.

Appellant's exceptions were as follows: "(1) Because it was error in his honor to refuse the second request to charge submitted by the defendant, which was as follows: '(2) That if the jury believe from the evidence that the plaintiff accepted the notes, without indorsement, in payment of the debt due on the Beacham note and mortgage, any subsequent promise by the defendant to pay the notes was without consideration and void.' (2) Because his honor erred in refusing to charge the third request submitted by the defendant, which was as follows: '(3) That, if the jury believe that Brown purchased the note before any indorsement was made upon it, then the fact that Wilson told him the indorsement was all right would not now estop Wilson from claiming that the indorsement was not authorized by him.' (3) Because his honor erred in charging the jury as follows, viz.: 'If you find that Mr. Frank Wilson was authorized by Mr. George Wilson, or it was the usual custom for him, to sign for Mr. George Wilson, and that he did not need any special authority for this particular occasion,--if, at the time he signed it for Mr. George Wilson, he was complying with a custom that had grown up, and he signed it, and it was afterwards ratified by Mr. Wilson,--it would be as binding as if Mr. Wilson had signed it himself.' (4) Because his honor erred in refusing the motion for a new trial, when the verdict was a general one against all the parties, and it appeared from the record that only the defendant George S. Wilson was served with the summons and complaint. (5) Because it was error in his honor to refuse the motion for a new trial after he had charged the jury that it was necessary for the plaintiff to have the note protested, in order to bind the defendant, and when there was no testimony that the plaintiff had the note protested, and no claim by him that he had it protested, even if his honor erred in said charge; it being the province of the supreme court, and not of the jury, to correct errors of law made by his honor. (6) Because his honor erred in overruling the demurrer and motion to dismiss the complaint made by the defendant, there being no allegation in the complaint that the plaintiff caused the note to be protested when payment was refused by the maker, especially when he charged the jury that such protest was necessary to bind the defendant. (7) Because his honor erred in modifying the second and third requests to charge submitted by the defendant. The defendant relies upon the foregoing exceptions, and will ask the supreme court to reverse the judgment and grant a new trial upon them. Graydon & Graydon, Appellant's Attorneys."

The report of the case was as follows: "The above case came on for trial before me, with a jury, at Abbeville. The summons,...