Cornett v. Hafer

• Citation: 43 Kan. 60,22 P. 1015
• Parties: R. H. CORNETT et al. v. L. HAFER
• Decision Date: 11 January 1890
• Court: United States State Supreme Court of Kansas

22 P. 1015

43 Kan. 60

R. H. CORNETT et al. v. L. HAFER

Supreme Court of Kansas

January 11, 1890

Error from Stafford District Court.

ACTION to recover on certain promissory notes. The material facts appear in the opinion.

Judgment affirmed and reversed.

Vandeveer & Martin, for plaintiffs in error.

Sluss & Stanley, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Stafford county by L. Hafer, against R. H. Cornett and E. M. Cornett husband and wife, to recover from them $ 650 and interest, upon two negotiable promissory notes. Each note was dated "Gunn City, Mo., April 19, 1884," and was executed by S. Z. Hartzler as maker, to the order of R. H. Cornett, payee -- one note being for $ 300, payable on November 1, 1884, and the other note being for $ 350, payable on December 31, 1884; and each note was indorsed upon the back thereof as follows: "Pay the within to L. Hafer. R. H. Cornett, E. M. Cornett." These notes were sold by R. H. Cornett to Hafer about the last of June, 1884, and at the time of the sale and before delivery the foregoing indorsements were made thereon. On March 2, 1887, the case was tried before the court without a jury, and the court rendered judgment in favor of the plaintiff, Hafer, and against both the defendants, the Cornetts, for $ 403.08 and costs of suit, and an additional judgment against E. M. Cornett for $ 349; and the defendants, as plaintiffs in error, bring the case to this court for review.

It is admitted that R. H. Cornett was an ordinary indorser, and as such was entitled to all the rights and privileges as well as being subject to all the burdens and obligations of such an indorser. But it seems to be claimed by the defendant in error, plaintiff below, that Mrs. Cornett was not such an indorser, but was a guarantor. Now if she alone had indorsed the notes, not being a party thereto -- if they had never been indorsed by her husband, the payee thereof -- then under the authority of the decisions made in the cases of Firman v. Blood, 2 Kan. 496, Fuller v. Scott, 8 id. 25, and Jones v. Kuhn, 34 id. 414, it would necessarily follow that prima facie she was just what the defendant in error claims her to be, that is, a guarantor; but she was not the only indorser of the notes. Her husband, the payee thereof, first indorsed the same, and she afterward indorsed them, and therefore under all, or very nearly all the authorities, she must be held, prima facie at least, to be merely an ordinary indorser of the notes and to be entitled to all the rights and privileges of such an indorser, as well as to be subject to all the obligations and burdens of the same. (Bradford v. Pauly, 18 Kan. 216; Withers v. Berry, 25 id. 375; Vore v. Hurst, 13 Ind. 551; Houston v. Bruner, 39 id. 376; Blatchford v. Milliken, 35 Ill. 434; Jack v. Morrison, 48 Pa. 113; Greenough v. Smead, 3 Ohio St. 415; Bigelow v. Colton, 13 Gray 309; Clapp v. Rice, 13 id. 403; Hayden v. Weldon, 43 N.J.L. 128; Cogswell v. Hayden, 5 Ore. 22; Chalmers v. M'Murdo, 19 Va. 252, 5 Munf. 252; Cady v. Shepard, 12 Wis. 639; Davis v. Barron, 13 id. 227; Jones v. Goodwin, 39 Cal. 493; Fear v. Dunlap, 1 Greene 331; Moore v. Cross, 19 N.Y. 227; Milton v. De Yampert, 3 Ala. 648; Price v. Lavender, 38 id. 389.)

Judgment was rendered in this case against Mrs. Cornett upon both the notes, evidently upon the theory that she was a guarantor, and not an indorser; for there is no pretense that the first note of $ 300 was ever protested, or that any legal notice of its dishonor was ever given to either of the endorsers; and no legal notice of the dishonor of the other note -- the one for $ 350 -- was ever given or attempted to be given to Mrs. Cornett until nearly a year had elapsed after the dishonor of such note, when an oral notice was given to her. Of course the judgment against Mrs. Cornett is erroneous, and must be reversed.

The judgment against R. H. Cornett was not rendered upon the first note at all, but only upon the second note -- the one for $ 350, due December 31, 1884; and the principal question arising upon this judgment is, whether any legal or proper notice of the dishonor of this note was ever given to Cornett? It would seem from the evidence in this case that on January 3, 1885, this note was presented to Hartzler, the maker thereof, at Gunn City, Missouri, for payment, and not paid, and was then regularly and legally protested, and three notices of dishonor sent by mail from Harrisonville Missouri, to L. Hafer, at Wichita, Kansas, where Hafer resided. Hafer received the notices in due course of mail, and immediately sent two of them inclosed in an envelope by mail to R. H. Cornett, at Emporia, Kansas, addressed as follows: "R. H. Cornett, Emporia, Kansas. Send to his address, if you know where it is;" and the evidence shows that Cornett admitted that he received these notices. In June, 1884, when Hafer purchased the notes from Cornett, he, with his family, was residing at Emporia; but he then informed Hafer that he expected to remove in five or six days to Pawnee Rock, Kansas, and he did so remove, and was residing at Pawnee Rock when this note became due, and when said notices were sent to Emporia; but no one interested in the note except the Cornetts knew it. Hafer testified that he exercised great diligence to...