Culbertson v. Smith

• Decision Date: 16 December 1879
• Parties: SAMUEL CULBERTSON v. MARTHA McD. SMITH.
• Court: Maryland Court of Appeals

52 Md. 628

SAMUEL CULBERTSON v. MARTHA McD. SMITH.

Court of Appeals of Maryland

December 16, 1879

Appeal from the Circuit Court for Washington County.

This action was instituted by the appellant against the appellee.

The case is stated in the opinion of the court.

The prayers of the plaintiff, which the court (Pearre and Motter JJ.,) rejected, are omitted, as they are of unusual length and their insertion would only encumber the case, without serving to elucidate the questions involved, which are fully presented in the opinion of this court.

The defendant offered no prayers. The court instructed the jury as follows:

If the jury shall find that the single bill, offered in evidence in this case, was executed by George G. Smith, and delivered to the plaintiff on the 1st of May, 1871, and that the plaintiff, at that time, loaned to the said Smith, the money mentioned therein; and that in February, 1872, the defendant endorsed her name in blank on said single bill, and that at the trial of this cause the plaintiff, by his attorney, wrote over said blank signature the undertaking now appearing thereon and offered in evidence to the jury, the plaintiff cannot recover in this action, because the said undertaking for both or either of the considerations therein expressed is within the fourth section of the Statute of Frauds, and there is no evidence in this cause which shows any compliance with the said Statute--that is, a written agreement or any note or memorandum thereof, signed by the said defendant.

The plaintiff excepted, and the verdict and judgment being against him, he appealed.

The cause was argued before BARTOL, C.J., BOWIE, BRENT, MILLER ALVEY and IRVING, JJ.

Louis E. McComas and Andrew K. Syester, for the appellant.

H. Kyd Douglas, for the appellee.

Alvey J., delivered the opinion of the court.

This action is founded upon what is alleged to be a guaranty by the appellee of payment of a single bill, made by George G. Smith, the son of the appellee, to the appellant, for $3,663.

The single bill is dated the 1st of May, 1871, and is made payable twelve months after date. It was, on the day of its date, delivered to the appellant for money borrowed by Smith; and about nine months thereafter, the appellee wrote her signature, without any thing more, across the back of the note; and over this blank indorsement the appellant, at the trial below, wrote the following:

"In consideration of the loan of the money mentioned in the within single bill to my son, and in fulfillment of his representations to the payee that I would guarantee or become surety for the payment of the money, and in consideration of the payee's promise and agreement not to press the payment of this single bill at its maturity, and to forbear suit thereon for two years or more, I hereby guarantee the payment thereof to the said Samuel Culbertson, should George G. Smith make default in payment thereof."

The appellee pleaded that she never promised, or was never indebted, as alleged, and that she never made the guaranty alleged; and she resisted the appellant's right to recover upon two grounds: 1. That there was no sufficient writing to gratify the requirement of the Statute of Frauds; and, 2. That there was no sufficient consideration for the alleged undertaking. There was an agreement that all errors in pleading should be waived, and that either party should be at liberty to introduce any evidence that would be admissible under a proper state of pleading.

In answer to the defense of the appellee, the appellant contends, and offered evidence for the purpose of showing, that the contract as between the appellant and George G. Smith, resulting in the making and delivery of the single bill, was not complete and executed, until the blank indorsement was placed upon the single bill by the appellee; that the single bill had been made and delivered provisionally only, previous to that time; that it was contemplated from the beginning of the transaction, that the appellee would become surety for the ultimate payment of the money loaned, and for which the single bill was given, and that the money was loaned upon that assurance and understanding, as between the original parties to the single bill. But, notwithstanding the parol evidence offered by the appellant, the court below held that the Statute of Frauds constituted an insuperable barrier, and that the appellant could not recover; and, after careful consideration, we fail to discover any ground upon which that ruling can be successfully questioned.

In the case of promissory notes, and also of non-negotiable notes, not under seal, questions often arise as to the effect of a blank indorsement placed thereon by a party other than the payee or his indorsee, the question, in such case, being whether the party thus indorsing should be held liable as an indorser, or as an original promisor. Story's Pro. Notes, sec. 473. And in all such cases, in order to construe such blank indorsement into a joint original promise with that expressed upon the face of the note, it is necessary that it should appear either that the signature was placed on the note at the time it was made or before it passed to the payee, or so soon thereafter, and under such circumstances, as will give it relation to the original making of the note. This is the principle of many of the cases relied on by the appellant; as, for example, Moies v. Bird, 11 Mass. 436. In that case it was held, that although the blank indorsement was placed upon the note subsequent to the time at which the note was made and delivered by the principal debtor, yet the act of placing the signature upon the note should be referred to the date of the note; and that the party thus signing the note in execution of a previous promise should be held to assent to such reference, so as to be considered as having placed his name upon the note before it was passed to the payee, and thus be made an original promisor. So in Samson v. Thornton, 3 Met. 275, and again in Bank v. Willis, 8 Met. 504. And in Hawkes v. Phillips, 7 Gray, 284, much relied on by the appellant, it was held, that where a person, not a party to a promissory note, who, after its delivery to the payee, placed his name upon the back of it, pursuant to an agreement made with the payee before the making of the note, though without the knowledge of the maker, was liable on the note as a joint maker. These cases, and others decided upon the same principle, are not within, and therefore not affected by, the Statute of Frauds, and, consequently, parol evidence was admissible for the purpose of showing the circumstances under which the signatures were placed on the notes.

But in the case under consideration, the note being under seal, the party placing her name upon the back of the note cannot be regarded as a joint obligor with the maker of the note, nor can she be regarded as an indorser in the ordinary sense of that term, which implies obligation to pay, as upon a negotiable note. The circumstances of the case,...