Harris v. Jones

• Decision Date: 29 June 1912
• Citation: 136 N.W. 1080,23 N.D. 488
• Parties: HARRIS v. JONES et al.
• Court: North Dakota Supreme Court

23 N.D. 488

136 N.W. 1080

HARRIS

v.JONES et al.

Supreme Court of North Dakota.

June 29, 1912.

Syllabus by the Court.

Defendant was requested by one T. to become his surety upon a negotiable promissory note. He declined until T. should obtain plaintiff to sign first. This information was conveyed to plaintiff, who signed as surety, and thereupon defendant also signed as a surety. Later, and after judgment upon the note, plaintiff paid the note and brings this suit for contribution. Held that, while plaintiff and defendant were cosureties as to the payee of the note, yet as between themselves such relation did not exist, but that defendant was a surety for both T. and the plaintiff, and plaintiff was a principal as to defendant. Therefore an action for contribution will not lie. This principle is supported by the great weight of the common law and has been enacted into the statute law of this state with the new negotiable instrument law. See sections 6366 and 6370, R. C. 1905.

Indorsers of negotiable paper, as respects one another, are prima facie liable in the order in which they indorse, but evidence is admissible to show that each has agreed to be liable for the principal debtor alone, and therefore that all indorsers are cosureties, but in the case at bar plaintiff has failed to show any such agreement, and, on the contrary, what evidence was offered tended to show that plaintiff and defendant both understood that the liability of plaintiff should be for T. alone, and the liability of defendant should be for T. and plaintiff.

Appeal from District Court, Richland County; Allen, Judge.

Action by Carl E. Harris against Martin Jones and another. From a judgment for plaintiff, defendants appeal. Reversed, with direction.McCumber & Forbes, of Wahpeton, and Martin Scramstad, of Wyndmere, for appellants. Wolfe & Schneller, of Wahpeton, for respondent.

BURKE, J.

In the spring of 1906, one Carl Tronsgard, a druggist of this state, was indebted to Noyes Bros. & Cutler, wholesalers, in the sum of $805.11. Being pressed for payment, he applied to Jones, the cashier of the local bank, to indorse a note for that amount, due in one year, and thus secure a year's extension upon his debt. Jones replied that owing to his position in the bank and his bonds he could not assume the risk unless he had security, and to use Jones' own words: “It happened that Tronsgard asked me to sign a note with him for about $800. Because of the business I was in, in the bank, it was unlawful; that is, it wouldn't be safe to do it. I told him, on account of my personal bonds, unless I had some security to protect me, I says, ‘If you get your brother-in-law, Harris, to sign that first, so there would be no risk on my part, I would sign,’ and he said he would go and see him, and he brought back the note with his name on it, and I signed it.” That Tronsgard related to Harris the substance of the conversation had with Jones is apparent from the testimony of Harris himself, wherein he says, in answer to a question: “Q. And didn't Tronsgard say that he first went to Jones to get him to sign the note, but that he wouldn't sign the note until you first signed it? A. Yes.” And again he was asked: “Q. But, however, he did say that Martin Jones had said he wouldn't sign until you had signed? A. Yes, sir.” And still again he was asked: “Q. What was the talk you had with Tronsgard about your signing that note, and Martin Jones signing it? A. He says Martin would sign, if I did. Q. Martin would sign if you signed it first? A. Yes, sir.” That this was the understanding of both Harris and Jones further appears from the correspondence between these two persons written before the lawsuit was begun. At all events, the note was signed by Tronsgard as maker and indorsed upon the back first by Harris and next by Jones. Two others signed their names later, but their rights are not in litigation herein. When the note became due, it was not paid and was reduced to judgment, and an execution placed in the hands of the sheriff. When a threat of levy was made to Harris, he paid and caused to be satisfied of record the judgment, and took in his own name two notes from Tronsgard and his wife for the amount of the debt, which notes fell due in about six months' time. After the maturity of said notes, Harris sued Jones for contribution as a cosurety under section 6110, R. C. 1905, alleging that the Tronsgards and the other sureties were insolvent. The case is before us for trial de novo.

[1] (1) The first question arising is the relation of Jones to Harris. Counsel for both sides seem to act upon the assumption that they were cosureties for all purposes, and the trial court naturally followed them. This relation existed, of course, between them, from the viewpoint of the payee of the note, Noyes Bros. & Cutler;...