Jaronko v. Czerwinski

• Decision Date: 23 May 1933
• Citation: 117 Conn. 15,166 A. 388
• Court: Connecticut Supreme Court
• Parties: JARONKO v. CZERWINSKI et al.

166 A. 388

117 Conn. 15

JARONKO v. CZERWINSKI et al.

Supreme Court of Errors of Connecticut.

May 23, 1933

Appeal from Court of Common Pleas, Hartford County; Abraham S Bordon, Judge.

Action by Bronislaw Jaronko, an indorser of a promissory note against Franciszek Czerwinski and others, to recover from the maker and four indorsers preceding the plaintiff the amount of the note which the plaintiff was compelled to pay, brought to the city court, and on appeal to the court of common pleas, and there tried to the court; judgment rendered for plaintiff against the named defendant (maker) only, and appeal by the plaintiff.

Error and new trial ordered.

Ralph O. Wells, Martin F. Stempien, and William S. Locke, all of Hartford, for appellant.

Cyril F. Gaffney, of New Britain, for appellees.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

HINMAN, Judge.

The complaint alleged that on January 17, 1931, the defendant Czerwinski executed to the Polish Investment & Loan Company Inc., his note for $600, payable $12 per week, with a provision that upon default in any one payment the whole amount should become due with attorney's fees or other charges or expenses for collection. The defendants Begay, Tercyak, Duszak, and Panaski and the plaintiff " endorsed the said note" for Czerwinski, who failed to make the payments according to the tenor of the note and the payee exercised its power to demand full payment. Notice of demand was sent to the defendants, but they refused to make payment, and the plaintiff was compelled to pay the note with fees and costs, amounting in all to $655.91. Demand of payment from the defendants and refusal and possession of the note by the plaintiff due and unpaid were also alleged, and $1,000 damages claimed. The printed form signed by the defendants, on the back of the note, made part of the complaint, is quoted in a footnote.^[1] Begay and Duszak, the only defendants who answered, filed general denials.

The trial court found the making and execution as alleged and that the payee obtained judgment against the several parties which was collected in full from the plaintiff. Each of the first three parties whose signatures appear on the back of the note signed at the request of Frank Tercyak, a friend of the maker, in the absence of all the other parties to the note and without any express agreement relative to the liability incurred. Duszak affixed his name as the fourth signer, but not in the presence of any of the other parties, and it did not appear at whose request he signed. After these four signatures had been obtained, Tercyak submitted the note to the payee, which refused to accept it unless a fifth indorser was obtained. Tercyak then took the note to the plaintiff and asked him to sign, and he attached his signature beneath the others. The plaintiff entered into no express agreement with any one relative to his liability or the mutual rights and liabilities of himself and the other parties. There was no prearrangement as to the order in which the parties were to sign; they all signed as an accommodation to the maker, although some of them did not know him. Further findings which are attacked on this appeal are stated hereafter.

The conclusions reached were that, while there was no expressed agreement among the parties whose signatures appear on the back of the note as to their respective liabilities, the circumstances created an implied agreement that they should be bound only as guarantors and liable respectively only for a proportionate part of the total, as among themselves, that they should not be liable as indorsers, and therefore that they were liable among themselves for contribution only. The court also held that the form of the complaint did not admit of a judgment in favor of the plaintiff against them for such contribution, and rendered judgment against the named defendant, the maker, only.

The appellant assigns error as to certain portions of the finding, the conclusions, and in overruling claims of law that the defendants, other than the maker, and the plaintiff were accommodation indorsers, respectively liable, in the order in which they indorsed, to the plaintiff for the full amount which he had been required to pay; also that, even if they were merely coagulators, the plaintiff was entitled under the complaint to a judgment against each of the others for contribution of a proportionate part of the amount.

Attack is made, as being without evidential support, upon findings to the effect that the three parties whose signatures appear first on the back of the note, and the plaintiff, each signed under circumstances which would lead him to believe that he was becoming a joint guarantor, binding himself only for a proportionate part of the amount of the note, that none of them attached any significance to the order in which their signatures were affixed, there was no reliance by subsequent signers upon the responsibility of those preceding, and none of them agreed to be liable to the succeeding signers for the full amount. The only direct testimony as to the circumstances under which the signatures were obtained is that of Tercyak, and is merely that he took the note to the first three in succession (the circumstances of Duszak's signing do not appear) and later to the plaintiff, asked each to sign, and he did so. It does not appear that anything was said as to other signatures or the obligation which the signer was assuming. Therefore, if the questioned findings can be justified, it must be from the wording of the undertaking itself and permissible inferences from these scanty circumstances attending or pertaining to the signing. " A person placing his signature upon an instrument otherwise than as a 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. General Statutes, § 4380. " As respects one another, indorsers are liable prima facie in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise." General Statutes, § 4385. This section applies to accommodation indorsers who indorse before delivery to the payee. Brannan's Neg. Inst. of Law, Annotated (5th Ed.) pp. 716, 759-764: Donnelly v. Garvan, 111 Conn. 626, 631, 151 A. 168.

The only language in the printed form signed by the parties which might be taken as evidencing an intention to be bound in any other capacity than as indorsers is. " I hereby *** guarantee payment," but this may as well have been used as the equivalent of engaging that on due presentment the note shall be accepted or paid, and, if it be dishonored, the signer will pay the amount thereof to the holder or to any subsequent indorser who may be compelled to pay-which is the undertaking of an indorser. General Statutes, § 4383. The waiver of demand, protest, and notice is not inconsistent with the liability as indorser. Mere guarantors are not entitled to such notice. 2 Daniel, Neg. Inst. (6th Ed.) § 1754. Signers of a guaranty of payment with a waiver of presentment, protest, and notice of dishonor have been held in numerous cases to be indorsers with an enlarged liability. First National Bank v. Baldwin, 100 Neb. 25, 158 N.W. 371; Toler v. Sanders, 77 W.Va. 398, 87 S.E. 462; German American Savings Bank v. Hanna, 124 Iowa, 374, 100 N.W. 57; Jones County Trust & Savings Bank v. Kurt, 192 Iowa, 965, 182 N.W. 409; Hutson v. Rankin, 36 Idaho, 169, 213 P. 345, 33 A.L.R. 91; Cady v. Bay City Land Co., 102 Or. 5, 201 P. 179, 21 A.L.R. 1375; Richmond Guano Co. v. Walston, 191 N.C. 797, 133 S.E. 196, 46 A.L.R. 1516; Brannan's Neg. Inst. Law, Annotated (5th Ed.) pp. 425, 445. The liability of a guarantor differs from that of an indorser, in that the latter contracts to be liable only upon condition of presentment on the exact day of maturity and due notice of dishonor and is discharged by failure in either particular, although he may suffer no actual damage, while a guarantor is bound to pay the amount upon presentment made and notice to him of dishonor within a reasonable time. Also, in the event of failure to make presentment and give notice within such reasonable time, the guarantor is not entirely discharged from liability but only to the extent that he may have sustained loss or injury by the delay. " The same person may be guarantor, and also indorser of a note; and in such case, while failure to give him due notice of demand and nonpayment will discharge him as indorser, he will still be bound as guarantor." 2 Daniel, Neg. Inst. (6th Ed.) § 1754; Toler v. Sanders, supra; Loomis Institute v. Hurd, 57 Conn. 435, 18 A. 669.

The terms of the undertaking signed by the present parties do not indicate otherwise than that the predominant intent was to assume the obligations incident to an ordinary...