Cook v. Southwick

• Decision Date: 01 January 1853
• Citation: 9 Tex. 615
• Parties: COOK AND ANOTHER v. SOUTHWICK.
• Court: Texas Supreme Court

9 Tex. 615

COOK AND ANOTHER

v.SOUTHWICK.

Supreme Court of Texas.

1853.

Where a person not the payee signs his name upon the back of a promissory note at the time of its inception, without any words to express the nature of his undertaking, he is liable as an original promissor or as surety; but it is competent for the person so signing to show by oral or other evidence the real obligation intended to be assumed at the time of signing. (Note 111.)

Although the note in such a case be not negotiable if the consideration passed wholly to the payee, the indorser will be liable as surety only.

Where the indorsee of a note has complied with the statute by bringing suit against the principal at the first term of the court, the statute is fulfilled, and the rights and liabilities of the parties are remitted to the common law; and at common law, delay, without fraud or agreement with the principal, will not discharge the surety.

A plea in abatement of the citation comes too late after exception to the petition.

The absence of witnesses is no ground for a new trial where their absence was not made the ground of a motion to continue and excuse is not shown for the failure to make such motion.

Error from Galveston. The defendant in error sued the plaintiffs in error on a note which read as follows:

“GALVESTON, Oct. 1 st, 1846.

300. Five months after date I promise to pay Robert O. W. McMannus, three hundred dollars, being in part payment for the steamboat called the Little Sally.

+-----------------------+
                ¦(Signed)¦WM. M. COOK.” ¦
                +-----------------------+
                

(Indorsed) “HENRY HUBBELL.”

The petition alleged that the defendant, Cook, by his note, which was set out, and the defendant, Hubbell, by his indorsement thereof, at the same time became liable and promised to pay the contents thereof to the payee, who assigned the note to the plaintiff. The petition stated that the defendant resided in Galveston. There was service on the defendant, Hubbell; and after several ineffectual attempts to obtain service on the defendant, Cook, the plaintiff amended his petition, alleging that since the commencement of the suit he had changed his residence to the county of Calhoun. Service was ultimately obtained upon him in that county.

At the first term after service on the defendant, Hubbell, he appeared and moved the court to dismiss the case, because service had not been made on his co-defendant. He also excepted to the amendment of the petition. His exception and motion to dismiss were overruled. At a subsequent term he again moved to dismiss, urging various objections to the regularity of the proceedings and to the legal sufficiency of the petition, and objecting to the want of service on the defendant, Cook. The motion was overruled. And at a term still later, the cause having been continued to perfect service, the defendant, Hubbell, again moved to dismiss, for the causes assigned in his previous motions, urging that the plaintiff had not used due diligence to obtain service on Cook, who, he averred, was principal and himself but surety in the note. The motion was overruled, and the cause again continued for service upon Cook. At a subsequent term, the defendant, Hubbell, pleaded in abatement of the writ. The defendants answered to the merits, charging fraud, failure of consideration, & c.

Exceptions were sustained to the plea in abatement. There were other exceptions and rulings which do not require notice. The court instructed the jury that, by his indorsement upon the note, the defendant, Hubbell, became a joint and several promissor to the payee, and his liability was the same as if he had signed at the bottom of the note. The defendants moved the court for a new trial, and in support of their motion filed an affidavit of the defendant, Cook, of the materiality of certain testimony, which he averred he had not had time to obtain since service of process upon him. They also filed the affidavit of a witness explaining his non-attendance at the trial, and stating facts within his knowledge impeaching the consideration of the note. The court refused a new trial, and gave judgment upon the verdict; and the defendants brought a writ of error.

Alexander and Tucker, for plaintiffs in error.

Joseph & Howard, for defendant in error.

WHEELER, J.

It is insisted for the plaintiff in error that Hubbell was but a surety upon the note, and that the plaintiff was guilty of such laches in obtaining service on his principal, Cook, as to discharge the surety.

Judge Story, in his Commentaries on the Law of Promissory Notes, &c., says: “In some cases it is a matter of considerable nicety to decide in what character a party stands upon a promissory note in virtue of his indorsement thereof. It is plain that if he is the payee of the note, whether negotiable or not, he is to be deemed a guarantor of the note upon the footing of the original consideration, and if he indorses it subsequently, not being a regular indorsee from or under any of the antecedent parties, he will, in like manner, still be deemed a guarantor if there be a sufficient consideration for his indorsement, but not otherwise.” (Story's Com. on Prom. Notes, sec. 133.)

Again, after having treated of the cases where there was a written memorandum indorsed upon the note, either at the time when it was made or afterwards, and where the only question of course was, what was the true construction of the written memorandum as to the parties in interest, the learned commentator adds: “But cases have occurred of a very different nature where the party sought to be charged has indorsed his name in blank thereon. These cases have been either (1) where the note was not negotiable, or (2) where it was negotiable. In the former class of cases it has been held, that if the blank indorsement was made at the same time as the note itself the indorser ought to be held liable as an original promissor or maker of the note, and that the payee is at liberty to write over the blank signature, ‘for value received I undertake to pay the money within mentioned to B,’ the payee.” (Id., sec. 473.)

In Moies v. Bird, (11 Mass., 436, 440,) in treating of the effect of such an indorsement, Chief Justice Parker said: “But this note was not made payable to the defendant, and therefore was not negotiable by his indorsement. What, then, was the effect of his signature? It was to make him absolutely liable to pay the contents of the note. If he had been asked after the note became due to guarantee its payment, and such had been the understanding when he gave his name, it might have been necessary to declare against him as guarantor, instead of charging him as original promissor; but no such agreement is proved; he puts his name upon a note payable to...