Foster v. Balch & Platt

• Decision Date: 18 January 1907
• Citation: 79 Conn. 449,65 A. 574
• Court: Connecticut Supreme Court
• Parties: FOSTER v. BALCH & PLATT.

65 A. 574

79 Conn. 449

FOSTER

v. BALCH & PLATT.

Supreme Court of Errors of Connecticut.

Jan. 18, 1907.

Appeal from Court of Common Pleas, Litchfield County; Gideon H. Welch, Judge.

Action by Chauncey S. Foster, an indorser of a promissory note, to recover from Balch & Platt, another indorser. From a judgment for plaintiff, defendant appeals. Affirmed.

Action by an indorser of a promissory note to recover from another indorser, brought before a justice of the peace, and thence taken by defendants' appeal to the court of common pleas in Litchfield county; facts found and judgment rendered for the plaintiff by the court, Welch, J., and an appeal by the defendants. No error.

Samuel A. Herman, for appellants. Wellington B. Smith and Frank B. Munn, for appellee.

PRENTICE, J. One Miner, for the purpose of discharging an indebtedness to the defendants, made his promissory note for $70, payable to their order three months after date at the First National Bank of Winsted. The defendants thereupon indorsed it, and the plaintiff subsequently placed his name thereon as an indorser under the defendants. The defendants then discounted the note at said bank, received the avails thereof and placed them to Miner's credit upon their books. This note was thereafter renewed three times. Each renewal was identical in terms with the original and stood in all respects in the same position as did that instrument. Three days before the maturity of the last renewal Miner was declared a bankrupt. After its dishonor the plaintiff paid to the bank which held it the amount due thereon. He now seeks to recover the sum so paid. The complaint which he has framed to that end is one which counts upon the obligation imposed upon the defendants by the instrument itself. The allegations are that the defendants indorsed the note to the plaintiff, that the same was at maturity protested for nonpayment, that due notice of protest was given to the defendants, that it was presented by the plaintiff to the defendants for payment and not paid, that the plaintiff was the present holder, and that it has never been paid. The answer put the plaintiff to his proof of all his allegations, and in a second defense averred that the plaintiff's indorsement was, by the express agreement of the parties, one by virtue of which he was to assume the liability of an indorser prior to the defendants. The court found all the facts already recited to be true. It also found that the plaintiff's indorsement was without value and for the accommodation of both the maker and the payees, these defendants, and that there was no special agreement between these parties such as the answer set up or any other with respect to the order of liability. Upon the facts thus found the plaintiff is entitled to recover in some form of action. His payment, through the compulsion of his indorsement without value and for the defendants' accommodation, of a sum of money of which the defendants have received the benefit entitles him to reimbursement. The law will, if necessary, imply the defendants' promise to make the plaintiff good. Rodman v. Denison, 21 Conn. 406; Rowland v. Smith. 49 Conn. 404. 408; Morgan v. Thompson, 72 N. J. Law, 244, 62 Atl. 410; Peale v. Addicks, 174 Pa. 543, 548, 34 Atl. 201; Pomeroy v. Tanner, 70 N. Y. 547, 552; Owens v. Miller & Mayhew, 29 Md. 144, 158. It cannot militate against that result that the plaintiff, upon striking a balance of a long-standing mutual book account between him and Miner, is found to have been indebted to Miner at the time the original note was indorsed in an amount equal to or greater than the amount of the note, or that the plaintiff had previously lent his name to Miner as an indorser for his accommodation. Such facts would be subordinate ones to be weighed and considered in arriving at a determination upon the evidence as to whether the plaintiff's Indorsement was or was not for value. The court having found that it was without value, no foundation remains for the claim advanced that there was a novation.

In this connection it is to be observed, as...