H. B. Carr's Ex'x v. Rowland

• Decision Date: 01 January 1855
• Parties: H. B. CARR'S EX'X v. J. S. ROWLAND, EX'R.
• Court: Texas Supreme Court

14 Tex. 275

H. B. CARR'S EX'X

v.J. S. ROWLAND, EX'R.

Supreme Court of Texas.

1855.

Where a person not the payee of a note signs his name upon the back of it at the time of its inception, without any words to express the nature of his undertaking, he is liable as an original promissor or surety and not as an indorser merely. (Note 41.)

Where a person not the payee of a note signs his name upon the back of it without date, it is presumed, in the absence of proof, to have been done at the time of the inception of the note.

A guarantor or surety on a promissory note, as distinguished from an indorser, is not entitled to require that suit should be brought against the maker to the first term of the court after the maturity of the note.

Mere forbearance to sue the principal or mere delay without fraud or agreement with the principal does not discharge the surety, (who is not the indorser of a note or drawer of an accepted bill.)

See this case as to admissions in pleading.

An executor or administrator cannot object in the Supreme Court that his estate is not bound by his admissions contained in the pleadings.

Appeal from Titus. Suit by appellee against the appellant and others on a promissory note, as follows:

“On or before the 1st day of June, A. D. 1853, I promise to pay Gibson Myers and Jesse P. Hale one thousand dollars for value received. Given under my hand this 20th day of June, A. D. 1851.

WILLIAM SPICER.

Indorsed by Gibson Myers and H. B. Carr.”

The suit was commenced on the 13th of October, 1853. The petition contained a copy of the note and indorsements, and alleged that Hale had transferred all his interest in said note for a valuable consideration to the plaintiff, by delivery without indorsement.

Defendant filed several defenses, among which were a demurrer, on the ground that the plaintiff had not shown himself to be the owner of the note; plea that suit had not been brought to the first term of the court; general denial; amended answer; pleading “that said indorsement was made by said testator without consideration and for the accommodation of said plaintiff's testatrix, in this, that one T. L. Burns was indebted to plaintiff's testatrix, and, to pay the debt so due and owing, Burns obtained the note here sued upon from Myers and the payees, and, at the special instance and request of plaintiff's testatrix, the said H. B. Carr indorsed said note, without any consideration being received or had for the same, and for the accommodation of the said plaintiff.”

When the note was offered in evidence, the defendant objected to it on the ground that “it did not show that it was ever transferred by Jesse P. Hale, one of the payees.” The objection was overruled, and the defendant excepted.

The only evidence introduced by the plaintiff was the note and indorsements thereon, the authentication and rejection of it, and evidence to account for the plaintiff's failure to sue at the first term. Defendant introduced a good deal of evidence to show that suit might have been brought to the first term if diligence had been used.

The charge of the court made the case turn on the question whether good cause had been shown why suit was not brought to the first term of the court after the note fell due.

S. F. Moseley, for appellant.

T. J. & J. H. Rogers, for appellee.

WHEELER, J.

The indorsement of the note by the appellant's testator was not in the character of an ordinary indorser or assignor. It was in that of a guarantor or surety. He was not a payee, transferring the note by his indorsement. He put his name...