Druhe v. Christy

• Decision Date: 05 July 1881
• Citation: 10 Mo.App. 566
• Parties: WILLIAM DRUHE, Appellant, v. FRANK M. CHRISTY, Respondent.
• Court: Missouri Court of Appeals

10 Mo.App. 566

WILLIAM DRUHE, Appellant, v. FRANK M. CHRISTY, Respondent.

Court of Appeals of Missouri, St. Louis.

July 5, 1881

1. Successive accommodation Indorsers of negotiable paper are not co-sureties, as between themselves, in the absence of an understanding between them to that effect before or at the time of the indorsements.

2. A subsequent understanding, in the absence of a new consideration, will not support an action for contribution by a prior against a subsequent indorser.

Appeal from the St. Louis Circuit Court, LINDLEY, J.

Affirmed.

E. T FARISH, for the appellant.

S. N HOLLIDAY, for the respondent.

OPINION

THOMPSON J.

The plaintiff has appealed from an order of the Circuit Court overruling his motion to set aside a non-suit and grant a new trial. The plaintiff and the defendant indorsed nine notes for the accommodation of H. W. Dionysius. The plaintiff was the first and the defendant the third indorser. The second indorser, Frederick Eickerman, has been discharged in bankruptcy. Judgments were obtained against the plaintiff and Eickerman and the defendant by the holder of the notes, and the plaintiff was compelled to pay the amount of them amounting to some $15,000. Dionysius having died, the plaintiff became administrator of his estate, and has paid a dividend of twenty-two per cent upon his indebtedness, for which each of these notes has received its proportionate credit. He has brought this action against the defendant to recover one-half the amount which he has thus lost, upon the theory that he and the defendant occupy towards each other the relation of co-sureties on the notes.

The notes are negotiable. Each of them was made by Dionysius, payable to the order of the plaintiff, and each of them was indorsed by the plaintiff to Eickerman, by Eickerman to the defendant, and by the defendant to a person not before the court. There is no evidence of any agreement, understanding, or communication between the plaintiff and the defendant with respect to the nature of their liability as indorsers on the notes in question, at or prior to the time when they made the indorsement. The evidence tends to show nothing more than that they indorsed merely for the accommodation of Dionysius; that they indorsed in the order named, as commercial paper is usually indorsed; and that they had no understanding with each other touching their liability as such indorsers. There is evidence, however, that, after the notes had fallen due and judgments had been recovered upon them against all three of the indorsers, and while the sheriff was pressing the defendant to pay, the defendant had conversations with the plaintiff, in which he admitted his liability to pay his portion of what was due on the notes. He wanted to know how much the assets of Dionysius would be short; how much he would have to pay; pleaded the want of money; and told the plaintiff that if the plaintiff would take up the first note, he (the defendant) would take up the second.

This case is governed by the decision of the Supreme Court in McNeilly v. Patchin, 23 Mo. 40, where it is...