Franklin v. Browning

• Decision Date: 28 July 1902
• Docket Number: 1,682.
• Citation: 117 F. 226
• Parties: FRANKLIN v. BROWNING.
• Court: U.S. Court of Appeals — Eighth Circuit

117 F. 226

FRANKLIN v. BROWNING.

No. 1,682.

United States Court of Appeals, Eighth Circuit.

July 28, 1902

John B Turner, for plaintiff in error.

W. H Kornegay, for defendant in error.

In his complaint the plaintiff (defendant in error) alleged that the defendant (plaintiff in error) on April 27, 1895, being indebted to him in the sum of $480, in satisfaction thereof transferred to him two promissory notes, the payment of which he 'guarantied absolutely.' One of said notes was as follows:

'$380.

Vinita I. T., April 1, 1895.

'Three months after date I promise to pay to the order of G. W. Franklin the sum of three hundred and eighty dollars, value received, for wintering

cattle branded N.S. Cattle wintered by G. W. Franklin to stand good for the payment of this note, and is to be paid out of the first shipment of said cattle, and is to bear 10 per cent. interest from due.

N. Skinner.'

The date and the purport of the other note was the same, except that it was for the sum of $100, payable one day after date, and bore interest at the same rate from its date. Each note was indorsed as follows: 'Pay to the order of P. G. Browning, demand and notice waived, G. W. Franklin,' and the last mentioned note was further indorsed: 'Credited by cash on the within October 5, 1895, $65." Nonpayment, excepting the $65, was alleged, and judgment prayed for the amount due. Defendant answered, admitting his indebtedness to plaintiff April 27, 1895, and that in satisfaction thereof he then indorsed and transferred to him said two notes, but denied that he 'guarantied absolutely' the payment of the notes, 'except as appears indorsed thereon,' and denied any indebtedness to plaintiff; alleging that Skinner, the maker of the notes, was a resident of the Indian Territory, and solvent; that the notes were given 'for wintering about two hundred head of N.S. cattle, of which said brand there were about two thousand head, worth about $50,000; that said cattle were at that time in the Cherokee Nation, and said notes were intended to, and did, secure to the defendant a lien on all of said N.S. cattle for the payment of the debt therein expressed; that said notes were indorsed by defendant to plaintiff with the understanding and agreement that plaintiff would protect and enforce said lien, wholly refused and neglected so to do, although the same was admitted by said Skinner to be just and due, but trifled with said security, and negligently permitted said Skinner to ship said cattle out of the country, and suffered said lien to be lost, and since which time said Skinner has become wholly insolvent. ' The plaintiff demurred to this answer, as not stating facts sufficient to constitute defense to the complaint, or to entitle defendant to any relief. The court sustained the demurrer, and the defendant refusing to plead further, judgment was rendered in favor of the plaintiff, which, upon appeal, was affirmed by the United States court of appeals for the Indian Territory.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge.

LOCHREN District Judge, after stating the case as above, .

That the defendant indorsed each of the notes 'Pay to the order of P. G. Browning, demand and notice waived, ...