Lindsay v. Parrott

• Decision Date: 23 November 1914
• Docket Number: 16749
• Citation: 108 Miss. 161,66 So. 412
• Court: Mississippi Supreme Court
• Parties: LINDSAY v. PARROTT

66 So. 412

108 Miss. 161

LINDSAY v. PARROTT

No. 16749

Supreme Court of Mississippi

November 23, 1914

APPEAL from the chancery court of Leak county. HON. J. F. MCCOOL Chancellor.

Bill by G. A. Lindsay against George Parrott. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

J. L McMillan, for appellant.

George Parrott is not an indorser of the note of Green Washington but under the law is a comaker with him for the same consideration. Sec. 4006, Code 1906, provides that indorsed promissory notes may be protested for nonpayment as bills of exchange, etc. There is a marked distinction between an indorser of a note and a comaker, made so by law and based upon the consideration for which the signature was made and not upon the ideas or purposes of the makers or indorsers.

Where a party puts his name on the back of a note at the time it was made, as surety for the maker and for his accommodation, to give credit with the payee, his signature being thus based upon the original consideration for which the note was given he is by law made and held as a joint maker regardless of his intentions or purposes. The note in this case was given for the purchase money of the land in question and signed by both Washington and Parrott on the date of sale for the same consideration; therefore, making Parrott a comaker for the same consideration as that for which Green Washington signed the note. Had Parrott not signed for the same consideration as Washington, as in case G. S. Lindsay, the payee, had transferred the note to Parrott and then Parrott had transferred it by the indorsement appearing thereon to a third party for another and separate consideration from that for which the note was originally executed, then he would have been an indorser under the law in which case it would have been necessary to protest the note to have bound him but where he is a joint maker for the same and original consideration, whether he signs for the sole accommodation of his comaker or whether he participates in or receives part of the consideration, he is bound as a comaker and protest is unnecessary, even though he puts his name on the back of the note, believing and understanding at the time that he was only binding himself as guarantor. Pearl v. Cortright, 81 Miss. 300, and the authorities cited therein and the authorities cited in the brief on both sides. See body of opinion, page 1 of the case of Gallespie v. Oil Mill, 76 Miss. 406, 7 Cyc. 963-b, citing Cook v. Martin, 5 Sm. & M. 379 and Washington v. Planters Bank, 1 Howard, 230; Story on Promissory Notes (17 Ed.), 75-78.

O. A. Luckett, for appellee.

The contention of the complainant's solicitor, that George Parrott is a comaker of the note sued on, is not supported by his bill, because he alleges in the bill, that he was an indorser of the note and evidently he was, as the note was originally drawn to be signed by one person and that was Green Washington, the purchaser of the land, for which the note was given.

The note was afterwards indorsed by George Parrott as an accommodation indorser. The copy of the note filed as exhibit to the bill, shows this and it is now too late for counsel to change the whole scope and attitude of his bill and now claim that Parrott was a comaker, instead of an indorser, as charged in the bill. As an indorser he was entitled to notice on the nonpayment of the note and it should have been protested as required by law.

The case before the court is an accommodation indorser, without consideration or value paid, so far as the allegation of the bill shows, as none is shown in the bill. The complainant in his bill alleges no fact going to make Parrott liable as an indorser, nor does he excuse himself for not so doing. If the court will notice, Green Washington was purchaser of the land and the deed was made to him individually and his note taken for the purchase money afterwards indorsed by Parrott, who was evidently an accommodation indorser of the paper. The only purpose of making George Parrott a party to the bill was to procure a judgment against him or a decree over against him, in case the land did not bring a sufficient sum to pay the note, interest and cost. He was only a necessary party that far, and if under the allegations of the bill and the law of the land, he is not responsible on the paper for failure to give him notice and to protest the paper, the court ought to affirm the decree...