Community Bank v. Wright, 780907
| Decision Date | 06 June 1980 |
| Docket Number | No. 780907,780907 |
| Citation | 221 Va. 172,267 S.E.2d 158 |
| Parties | , 29 UCC Rep.Serv. 1329 The COMMUNITY BANK v. Mary T. WRIGHT. Record |
| Court | Virginia Supreme Court |
James F. Andrews, Petersburg (Lavenstein & Andrews, Petersburg, on brief), for appellant.
Stylian P. Parthemos, Richmond (Joseph S. Bambacus, Richmond, on brief), for appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.
On March 29, 1977, Mary T. Wright signed a 90-day note in the amount of $7,500 payable to the order of The Community Bank. In this appeal we are to determine the legal liability of Mary T. Wright on this note.
In March 1977, James W. Wright, Mary T. Wright's husband, met with the president of The Community Bank, Nathan S. Jones, III, seeking a $7,500 loan from the bank. Mr. Wright, already obligated on existing loans from Community Bank, was informed by Jones that his loan request would have to be submitted to the bank's loan committee for its approval. Alternatively, Jones suggested that he could personally approve a loan made directly to Mr. Wright's wife, subject to receipt of a satisfactory financial statement, thereby avoiding the delay involved in obtaining the loan committee's approval. Mr. Wright agreed. A financial statement for Mrs. Wright was prepared and submitted.
Mrs. Wright testified at trial that her husband requested that she go to The Community Bank and "indorse" a note for him, stating that he would go to the bank later to sign the note and take care of any details. Mrs. Wright went to the bank on March 29, 1977. What transpired is in dispute. Mrs. Wright claims she was never advised that she was to be the sole maker of the note and not merely an indorser. Mrs. Wright testified that at one point during the transaction the word "indorse" was used by Jones. Jones testified that he explained over the telephone to Mrs. Wright, prior to her signing, the reason her husband could not be a party to the note. It is the bank's position that the entire loan procedure was such that Mrs. Wright should have known that she was the maker of the note. When the transaction was completed, the entire $7,500 was deposited directly into Mr. Wright's business account.
The note became due on June 25, 1977. On or about June 28, 1977, Mrs. Wright received a notice naming her as the sole maker of the note and indicating that payment was due. Mrs. Wright, by then separated from her husband, contacted Mr. Wright, and he confirmed that she was in fact the sole maker of the note.
When the note was not paid, Community Bank filed this action asking for judgment in the amount of $7,500, plus interest and collection costs. In her grounds of defense, Mrs. Wright denied that she borrowed $7,500 from Community Bank, but admitted signing a promissory note on March 29, 1977, intending her signature to be that of an indorser for her husband as maker. She alleged that she was fraudulently induced to sign the note and therefore asked that the case be dismissed.
The case was tried before a jury. At the conclusion of all the evidence, Community Bank moved for summary judgment on the ground that Mrs. Wright would be liable on the note whether as a maker or as an indorser. The motion was overruled, and the jury was instructed, inter alia, on issues of constructive fraud through breach of a fiduciary or confidential relationship and active fraud. The jury returned a verdict for Mrs. Wright, and the trial court entered judgment on the verdict.
While the plaintiff has assigned a number of errors, we believe that the dispositive issue is whether the failure of the court to enter summary judgment at the conclusion of all the evidence was error.
Mrs. Wright admits signing the note on its face, but claims that she was fraudulently induced to do so by her husband, who represented that she would be signing as an indorser. She further contends that the bank had constructive knowledge of this fraudulent inducement. An examination of the instrument and the applicable statutes 1 reveals that Mrs. Wright's ultimate liability, whether as maker or indorser in this situation, would be the same.
The note provides in part that "(e)ach person liable herein in any capacity, (i) waives homestead exemption, presentment, demand, protest and notice of all kinds respecting this note." By virtue of the relevant statutes and the language of the instrument itself, the defendant has rendered herself primarily liable on the instrument. Cf. Barrett...
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