Coyne v. Anderson's Ex'rs

• Decision Date: 16 April 1903
• Citation: 73 S.W. 753
• Parties: COYNE v. ANDERSON'S EX'RS.
• Court: Kentucky Court of Appeals

73 S.W. 753

COYNE v. ANDERSON'S EX'RS.

Court of Appeals of Kentucky.

April 16, 1903

Appeal from Circuit Court, Jefferson County, Common Pleas Division.

"Not to be officially reported."

Action by L. L. Anderson's executors against Joseph Coyne and another. From a judgment for plaintiffs, defendant Coyne appeals. Affirmed.

E Macpherson, for appellant.

Helm Bruce & Helm, for appellees.

BARKER J.

Appellant Joseph Coyne, and one Joseph Clark, executed their joint note, payable to the order of Joseph Clark, for the sum of $1,500, negotiable and payable at the Louisville City National Bank. This note was assigned through W. S. Parker the cashier of the bank, to L. L. Anderson, for whom Parker was agent. Clark's indorsement to Anderson is as follows: "For value received, I hereby assign the within note to L. L. Anderson. [Signed] Joseph Clark." After the expiration of several months, and before maturity, Anderson discounted the note to the Louisville City National Bank, which thereby became its owner and holder. When this note became due, it was not paid, but, by arrangement of all the parties, it was renewed, and, for convenience, was separated into two notes, one for $500, and the other for $1,000. The renewal notes, not being paid by the makers at maturity, were protested for nonpayment, and thereafter paid off and taken up by Anderson's executor, he having in the meantime died. Suit having been instituted by the executor in the Jefferson circuit court against Joseph Clark and Joseph Coyne, the makers of the notes, substantially alleging the facts as herein set out, Joseph Coyne filed an answer, in which he denied the sale of the notes to L. L. Anderson, and pleaded that he was not indebted to Clark or Anderson; that he had joined in the making of the note for the accommodation of Clark, and upon the agreement that he was to be bound on the notes merely as surety to the bank at which they were or might be discounted, and was to be bound in no other way, and to no other person; and charged that Parker, the cashier of the bank, knew of this agreement between him and Clark, and that L. L. Anderson also had notice thereof; that the notes in question were obtained from him by fraud and covin, and that Joseph Clark, the assignor, was justly indebted to him in the sum of $1,264.57, which was pleaded as an offset. The case coming on to be tried was submitted to a jury, who returned a verdict in favor of appellee. For some reason, which does not appear, the court set aside this judgment, and awarded appellant a new trial. The case again coming on for trial, the court, after all the evidence was in, awarded appellee a peremptory instruction to the jury to find a judgment in its favor, as prayed for in the petition. Appellant's motion for a new trial having been overruled, he has appealed the case to test the soundness of the judgment awarding appellee a peremptory instruction.

We may say in the outset that there is no evidence in the record warranting the charge that either the original or the renewal notes were obtained from appellant by fraud or covin to which the appellee or the decedent was a party, or of which they had notice; nor is there any evidence to sustain appellant's contention that either Parker or Anderson knew of the alleged arrangement between appellant and Clark that appellant was only to be surety on the original note, or that there was no consideration, as between appellant and Clark; nor is there any evidence to sustain the claim that the original note was to be discounted in any particular bank. We think it clear that the original note was executed and delivered by appellant for the purpose of enabling Joseph Clark to raise money generally, and the question as to where he raised it was immaterial. It is doubtless true that appellant did not know Clark assigned the original note to Anderson, and, as the transaction occurred in the business place of the Louisville City National Bank, with its cashier he doubtless thought that it was discounted to the bank; but that he was at all interested in this question there is not the slightest evidence in the record. The case of Cline v. Templeton, 78 Ky. 550, will not support appellant's contention that, when Anderson's executor took up and paid off the notes discounted to the bank, they became, in its hands, subject to such defense or defenses as existed between the parties prior to their discount to the bank. The consideration of the note in the case cited was illegal, and of that fact the holder who indorsed it to the bank well knew; and when the maker failed to pay at maturity, and the indorser to the bank was required to pay it off and...