Hopkins v. Commercial Bank

• Decision Date: 20 November 1912
• Citation: 60 So. 183,64 Fla. 310
• Parties: HOPKINS et al. v. COMMERCIAL BANK.
• Court: Florida Supreme Court

60 So. 183

64 Fla. 310

HOPKINS et al. v. COMMERCIAL BANK.

Florida Supreme Court

November 20, 1912

Error to Circuit Court, Duval County; R. M. Call, Judge.

Action by the Commercial Bank against H. G. Hopkins and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Syllabus by the Court

SYLLABUS

Where a party, who is the payee of a negotiable promissory note places his name on the back of the note under the words 'We, as indorsers, waive demand, notice and protest, and guarantee payment of this note, and acknowledge that we sign with full understanding of this contract,' such person is an indorser, since by the indorsement he does not 'clearly indicate by appropriate words his intention to be bound in some other capacity,' as contemplated by the statute; and parol evidence is not admissible to show the status of such indorser to be that of a maker, so as to compel an action against him jointly with the three persons who signed the note as the makers thereof.

COUNSEL Bisbee & Bedell, of Jacksonville, for plaintiffs in error.

Cockrell & Cockrell and Geo. Couper Gibbs, all of Jacksonville, for defendant in error.

OPINION

WHITFIELD C.J.

The bank brought an action of assumpsit against H. G. Hopkins, F H. Elmore, and S. G. Searing as makers of the following note:

'$800.00. Jacksonville, Fla., May 30, 1911.

'Thirty days after date we promise to pay to the order of S. S. Goffin eight hundred and no/100 dollars, at the Commercial Bank, for value received, with interest at the rate of eight per cent. per annum after maturity until paid. Together with an attorney's fee of ten per cent. if given after maturity to an attorney for collection.

'H. G. Hopkins.

'2423.

F. H. Elmore.

'S. G. Searing.

'Due June 29, 1911.'

Indorsed: 'We, as indorsers, waive demand, notice and protest, and guarantee payment of this note, and acknowledge that we sign with full understanding of this contract. S. S. Goffin.'

The defendant pleaded 'that the promise whereon the plaintiff sues was made by the defendants jointly with S. S. Goffin, who is still living, and who at the commencement of this suit was and still is a resident within the jurisdiction of this court, and not by the defendants alone.' Issue was joined on this plea, and verdict and judgment were rendered for the plaintiff.

At the trial the plaintiff introduced the note, and also evidence as to the attorney's fee, and rested. Thereupon the defendants proffered testimony that the note was in reality made for Goffin's accommodation; that he was a party to it from the beginning; that he paid the discount; and that these facts were all known to the Commercial Bank before it passed into the hands of the bank; that there never was a valid and unconditional delivery to S. S. Goffin; that the only delivery of the note was made to the Commercial Bank after Goffin's signature had been attached.

The court excluded such testimony upon the theory that oral testimony could not change the liability of the parties on the note. A verdict for the plaintiff was directed, and, judgment having been rendered thereon, the defendants took writ of error.

Whether parties should be joined as defendants in an action on a negotiable promissory note may depend upon status or relation as well as upon liability. The status of an indorser or of a guarantor of a negotiable promissory note is quite different from that of a maker of the note, even though the liability of indorser or guarantor may, because of waivers, be equal to that of the maker. An indorser and the makers of a negotiable promissory note should not be joined as defendants in an action on the note. See Hough v. State Bank of New Smyrna, 61 Fla. 290, 55 So. 462; Webster v. Barnett, 17 Fla. 272.

Section 2996 of the General Statutes provides that 'a person placing his signature upon an instrument otherwise than as maker, drawer or acceptor, is deemed to be an indorser unless he clearly indicates by appropriate words his intention to be bound in some other capacity.' In this case S. S. Goffin, the payee of the note, placed his signature upon the back of the note under words that, 'as indorser,' he 'waived demand, notice and protest,' and did 'guarantee payment of this note.' This indorsement does not indicate an intention to be regarded as a maker of the note; for Goffin was the payee. The...