King v. Bank of Pangburn

• Decision Date: 10 October 1921
• Docket Number: 152
• Citation: 233 S.W. 920,150 Ark. 138
• Parties: KING v. BANK OF PANGBURN
• Court: Arkansas Supreme Court

233 S.W. 920

150 Ark. 138

KING v. BANK OF PANGBURN

No. 152

Supreme Court of Arkansas

October 10, 1921

Appeal from White Circuit Court; J. M. Jackson, Judge; reversed.

Judgment reversed and cause dismissed.

John E Miller, C. E. Yingling and W. R. Davenport, for appellant.

The court erred in giving a peremptory instruction for the plaintiff.

1. There was ample testimony to show that L. King signed the note as surety only. 54 Ark. 97; 92 Ark. 604; 143 Ark. 498.

The note itself shows that the appellant's name was cancelled and stricken off the note by the cashier of appellee bank. C. & M. Dig. § 7885, sub-divisions 3 & 4. The bank is estopped from asserting that it did not release appellant from liability. 131 Ark. 82.

2. The appellee renounced its rights against the appellant by the cancellation of his name on the note. C. & M. Dig. § 7888.

3. There was no satisfactory proof introduced by appellee to show that the name of appellee had been cancelled through mistake. C. & M. Dig. § 7889; 127 Ark. 234.

4. The note was materially altered and is void. C. & M. Dig. § 7891. Any material alterations avoid the note. C. & M. Dig § 7890; 131 Ark. 178; 127 Ark. 234; 5 Ark. 377; 32 Ark 166; 82 N. J. Law 662; 82 A. 901; Ann. Cases 1913D, p. 721.

The cashier had authority to alter the note and to release the appellant, and the bank is bound by his acts. 92 Neb. 539; 138 N.W. 741; Ann. Cases 1914A, 57 and note; 18 Am. & Eng. Ann. Cases, 413 and note.

Brundidge & Neelly, for appellee.

1. The court was correct in directing a peremptory instruction for the plaintiff.

There is no testimony to show the cancellation of the note. There was no consideration for the cancellation.

2. Appellant's liability was primary and absolute, demand and notice unnecessary. 143 Ark. 501.

3. If the note was altered, it was through appellant's procurement, and he could not take advantage of that fact. 131 Ark. 184; 112 U.S. 139-142; 2 C. J. p. 1219, n. 1; 1 R. C. L. 982; 26 Mich. 249; 35 Ark. 147; 148 Ill. 349.

4. The agreement to strike the appellant's name off the note was void for want of consideration. 106 Ark. 159. An agreement, in order to be binding, must have a consideration to support it. 96 Ark. 268. An agreement without consideration is void and does not suspend the rights of the parties. 12 Wheat. (U.S.) 554; 26 Ark. 155; 54 Ark. 97.

An extension of time to the principal, without consent of surety, discharges the latter. 34 Ark. 44; 82 Ark. 28; 103 Ark. 43; 123 Ark. 463.

OPINION

SMITH, J.

This cause comes here on appeal from a judgment rendered on a verdict returned by a jury under the directions of the court. Appellee insists this judgment must be sustained if there was any testimony legally sufficient to support it, inasmuch as both parties asked the court to give peremptory instruction in the trial below. It is true both parties asked a peremptory instruction; but, in addition thereto, appellant asked other instructions, and the court should not, therefore, have directed a verdict against him, if the testimony in his behalf, viewed in the light most favorable to him, would support a verdict in his favor. Webber v. Rodgers, 128 Ark. 25, 193 S.W. 87.

Thus viewing the testimony, the facts may be stated as follows: The suit is upon a promissory note for the sum of $ 1,500, which, as executed, reads as follows:

"$ 1,500. Pangburn, Ark., June 28, '19.

"Thirty days after date, for value received, we or either of us promise to pay to the order of Bank of Pangburn fifteen hundred no 1/100 dollars at the Bank of Pangburn, Pangburn, Arkansas, with interest at the rate of ten per cent. per annum from date until paid. The makers and endorsers of this note hereby severally waive presentment for payment, notice of nonpayment, and protest, and authorize extension of time without notice thereof. Interest unpaid when due to become as principal and draw the same rate of interest.

Due--Demand. P. O.--City. No. 150.

Witness: R. H. Dickenhorst.

J. W. Pierce,

J. Morrow,

R. T. King,

L. E. Morrow,

L. King."

J. W. Pierce, J. Morrow and R. T. King were principals, and L. E. Morrow and appellant, L. King, were sureties. Appellant King is the only signer who made defense, and this appeal involves only the question of his liability.

At or about the time the note fell due King was about to change his residence on account of his health, and he went to the bank to ascertain whether the note had been paid. Finding that it had not been paid, King demanded that the cashier give all parties notice to come to the bank and pay the note, King stating at the time that he did not want to leave any unfinished business behind. The cashier, on his own initiative, suggested that he did not care to press the makers of the note for payment, but that if he (King) would cause $ 400 to be paid on the note the time for the payment of the balance would be extended, and King released from further liability. Acting upon this suggestion, King saw the makers of the note and had them to pay the sum of $ 400 on the note. About two days later King called at the bank to see if this payment had been made. Only the assistant cashier was present in the bank at that time, but that officer, who was familiar with all the facts, promised to call the matter to the attention of the cashier. Relying on this promise, appellant King gave the matter no further attention until this suit was brought.

Thereafter the following notations were made on the note by the cashier of the bank: The payment of the $ 400, with the date of payment, was indorsed on the back of the note. Above the date of the note there was written with pen and ink the words, "Renewal date 7-29-19." The words, "Thirty days," appearing in the original note, were obliterated by drawing a line through them with pen and ink and the word "Demand" written above them. The name of "L. King"--this appellant--was canceled by drawing a line through it and immediately following the name the words "Not on renewal" were written above with pen and ink. The words "Ten days," in the lower left-hand corner of the note, were obliterated by a line drawn through them, and the word "Demand" written above them.

Appellee...