Burton v. Mccaskill
| Decision Date | 27 February 1920 |
| Citation | 79 Fla. 173,83 So. 919 |
| Parties | BURTON et al. v. McCASKILL. |
| Court | Florida Supreme Court |
Error to Circuit Court, Jackson County; C. L. Wilson, Judge.
Action by R. E. L. McCaskill against M. R. Burton and another. Directed verdict for plaintiff, motion for new trial overruled, and defendants bring error. Affirmed.
Syllabus by the Court
Notice of dishonor for nonpayment of a promissory note may be in writing, or merely oral, and may be given in any terms which sufficiently identify the instrument and indicate that it has been dishonored for nonpayment.
Notice of dishonor may be waived either before the time of giving notice has arrived, or after the omission to give due notice and the waiver may be express or implied.
Where the president and general manager of a corporation indorse the note of the corporation before its acceptance, and the note is afterwards transferred by indorsement to a bank, and the indorsers before and after the maturity of the note discuss with the bank the matter of further extension of time and indulgence for the payment of the note upon its maturity and after the note has become due these indorsers solicit the bank, the holder and owner of the note, to accept a new note payable to the original payee in the note past due for the amount of the principal and interest on said past-due note and secure such consent and cause the new note to be actually drawn and they indorse it, such acts constitute an implied waiver of notice of dishonor for nonpayment.
Where the indorsers of a note of a corporation, which note had been negotiated by indorsement to a bank after the note became due and was not paid, make arrangements with the bank for indulgence and extension of time of payment of the note by the giving of a new note to the original payee to include the principal and interest of the old note, and write to the payee and advise him of such arrangements that they had made and urge the payee to agree to such agreement, and to indorse the new note to the holder of the original note, such acts constitute a waiver of notice of dishonor for nonpayment of the note.
If after all the evidence of all the parties shall have been submitted it be apparent to the judge of the circuit court that no sufficient evidence has been submitted upon which the jury could legally find a verdict for one party, the judge may direct a verdict for the opposite party.
In an action against the indorsers of a promissory note of a corporation, a plea that the indorsement was for the accommodation of the payee, and the indorsers received nothing of value therefor, must fail, when the evidence shows that before the acceptance of the note, and in order to make it negotiable, the note was indorsed.
COUNSEL Paul Carter, of Marianna, for plaintiffs in error.
James H. Finch, of Marianna, for defendant in error.
The defendant in error, hereinafter referred to as the plaintiff sued M. R. Burton and Cecil Rhyne, the plaintiffs in error, and hereinafter referred to as the defendants, as indorsers of a promissory note of date September 3, 1913, signed, and payable to 'R. E. L. McCaskill or other,' and indorsed 'R. E. L. McCaskill, Cecil Rhyne, M. R. Burton,' and payable at 'First National Bank, Marianna, Florida.' Said note so executed is attached to the declaration and asked to be taken and considered as a part thereof. The declaration alleged that the maker of the note failed and refused to pay the same, and that the defendants at the maturity of said obligation were duly notified of the dishonor of the said note of the said Marianna Manufacturing Company, by reason whereof the defendants became liable and have promised to pay the same, but have not.
To this declaration the defendants filed two pleas: First, that the defendants indorsed the note sued on for the accommodation of the plaintiff and received nothing of value for said indorsement; and, second, that the note sued upon was at maturity dishonored for nonpayment, and the owner did not give the defendants, or either of them, notice of dishonor on the day the said note was dishonored, or upon the following day thereafter.
Plaintiff replied to the second plea: First, that the defendants after the maturity of the note and after the alleged failure to give notice waived notice of dishonor; second, that the note was presented for payment to the defendant Burton, and no notice of dishonor was therefore required to be given the said M. R. Burton.
On the same day the plaintiff filed a traverse of the pleas, to wit:
For a traverse of the first plea plaintiff denies that the defendant indorsed for the plaintiff's accommodation and received nothing of value.
Second. For a traverse of the second plea, denies that the owner or holder of the note failed to give defendants notice of its dishonor for nonpayment upon the day it was dishonored, or upon the following day thereafter.
Defendants joined issue on the replication.
At the conclusion of all the testimony or evidence the court directed verdict for the plaintiff.
There was a motion for a new trial, which was overruled, and to which ruling exception was taken.
The whole testimony considered there is but little conflict.
We will turn to the testimony in order to determine if the first plea has been sustained, that the note was indorsed for the accommodation of the plaintiff.
Without contradiction the evidence shows that the plaintiff shipped a carload of lumber to the Marianna Manufacturing Company, a corporation, of which the defendant M. R. Burton was the president and Cecil Rhyne was the general manager, and for which lumber this note was given.
The only conflict in the testimony, if this can be considered as conflicting, is whether the note was indorsed when it was first sent to the plaintiff, or was it sent and he refused and sent it back for indorsement in order to negotiate it and get money on it. In view of the conclusions reached, this is immaterial. Plaintiff testified that he felt confident the note was indorsed when he first received it, and in this connection he said:
Mr. Burton testified on this point, saying:
M. Cecil Rhyne testified that his recollection is that he indorsed the note a few days, perhaps a week, after the date of the note. He says:
The testimony is overwhelmingly abundant to show that the note was indorsed in order to make it marketable, and it is immaterial whether it was indorsed before it was first sent to the plaintiff, or whether he sent it back for indorsement; he had not accepted if it was sent back for indorsement and these defendants indorsed. In fact, Mr. Burton conducted the whole transaction; he saw the bank and made all arrangements as to the note, ans did all the correspondence with the plaintiff.
The evidence shows that this defense, set up by the first plea, has utterly failed.
The second plea sets up the defense that the note was dishonored for nonpayment and the defendants were not notified. The replication to this plea, and upon which issue was joined, is that after the maturity of the note, and after the alleged failure to give notice, the defendants waived notice of dishonor.
There was also filed what is called a 'traverse of the pleas of the...
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... ... So. 274; Rogers Co. v. Meinhardt, 37 Fla. 480, 19 ... So. 878; Varnes v. Seaboard Air Line R. Co., 80 Fla ... 624, 86 So. 433; Burton v. McCaskill, 79 Fla. 173, ... 83 So. 919; Florida East Coast R. Co. v. Carter, 67 ... Fla. 335, 65 So. 254, Ann.Cas.1916E, 1299; Stevens v ... ...
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...full value for them. The consideration is ample to sustain the indorsements, although Brelsford personally got no benefit. Burton v. McCaskill, 79 Fla. 173, 83 So. 919. If Brelsford was induced to indorse by conduct on the part of Cornish and Dunkle which as against them would be fraudulent......