McNeilly v. Patchin

• Decision Date: 31 March 1856
• Parties: MCNEILLY, Respondent, v. PATCHIN, Appellant.
• Court: Missouri Supreme Court

23 Mo. 40

MCNEILLY, Respondent,

v.PATCHIN, Appellant.

Supreme Court of Missouri.

March Term, 1856.

1. Successive accommodation endorsers are not co-sureties as between themselves, unless there is an understanding or agreement to that effect. They are responsible in the order of their endorsements.

Appeal from St. Louis Court of Common Pleas.

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

M. L. Gray, for appellant, cited the following authorities: 20 Mo. 229; 18 Mo. 74, 140; Douglass v. Waddle, 1 Ohio, 191; 7 Mo. 440; 12 Ohio, 167; 9 Ohio, 159; 9 Vermont, 345; 12 Verm. 219; 16 Verm. 554; 2 Mich. 555; 1 Doug. (Mich.) 296.

A. D. Glover, for respondent, cited the following authorities: Bank of United States v. Beirn, 1 Grattan, 234; Hubbard v. Williamson, 5 Iredell, 297; Williams v. Bossan, 11 Ohio, 62; Sherrod v. Rhoades, 5 Ala. 683; Cathcart v. Gibson, 1 Richardson, 10; Marr v. Johnson, 9 Yerg. 1; Howe v. Merrill, 5 Cush. 80; Irvin v. Manny, 1 Miss. 194; McNeill v. Elam, Peck, 268; McDonald v. Magruder, 3 Pet. 470; Story on Prom. Notes, sec. 479; Lewis v. Harvey, 18 Mo. 80; Story on Prom. Notes, § 348; 4 McLean, 396.

RYLAND, Judge, delivered the opinion of the court.

This was a suit by McNeilly, who was an accommodation endorser, against Patchin, who was also a prior accommodation endorser, to recover the amount paid by him to the holder of the note. Defence was that the note was executed wholly without consideration, so far as the defendant was concerned; that it was endorsed by plaintiff and defendant in blank, as co-securities for Clarkson, and delivered to him to be discounted; that both plaintiff and defendant endorsed the note in blank as co-securities for Clarkson, and not as successive accommodation endorsers; that defendant is not liable to plaintiff at all on the note, or, if liable, is only so for contribution; also that there was no notice sufficient to charge endorsers.

There was a trial by the court, and the facts found by the court are substantially as follows: That Clarkson, the maker, applied to Thompson to have him discount a note, to be drawn by him (Clarkson) and endorsed by Patchin, the defendant, a portion of the proceeds of which was to be applied by Thompson to the payment of Clarkson's indebtedness to him. Thompson declined discounting such a note unless the name of the plaintiff was also procured on the note. Thereupon said Clarkson, for whom Patchin had been in the habit of endorsing as accommodation endorser, applied to the defendant, Patchin, to endorse said note, and stated to said Patchin what had occurred between him and Thompson. The defendant endorsed said note for Clarkson's accommodation; Clarkson also applied to plaintiff to have him endorse the same subsequent to Patchin's endorsement, and stated to the plaintiff that Thompson had agreed to discount such a note. Clarkson was at that time indebted to the plaintiff, and promised the plaintiff if he would so endorse the note that he (Clarkson) would pay to the plaintiff fifty dollars on account of said indebtedness to him. Whether said fifty dollars were to be paid out of the proceeds of the note does not appear. The solvency and ability of the defendant to pay the note were known to said Clarkson and the plaintiff, and something was said with reference thereto by Clarkson when he applied to the plaintiff to endorse said note. Thereupon, the plaintiff put his name on the back of said note, under that of the defendant, who was the payee thereof, and said note was then taken by said Clarkson to Thompson and was discounted by the latter. The court finds that the note was not paid; was presented for payment, which was refused, and was duly protested; that notices of protest were given, a copy of which was inserted by the court in its finding. Rankin, who was also an endorser, paid the note and sued the maker, McNeilly and Patchin. The maker, Clarkson, was not served with process, and the suit was dismissed as to him. McNeilly neglected to answer; there was an answer by Patchin denying due notice of presentment for payment. Judgment by default was taken against McNeilly, and the suit was dismissed as to Patchin. McNeilly paid the amount of the judgment on execution against him, being $340 56, on 5th January, 1855.

The court finds that at the time said McNeilly put his name on the back of the note, he knew that Patchin had previously endorsed the same for the accommodation of Clarkson, and said McNeilly understood the purpose to which said note was to be applied by said Clarkson. There was no understanding or agreement between said Clarkson and the plaintiff, nor between the plaintiff and the defendant, Patchin, that the plaintiff was to endorse said note in any other way than as second endorser, or that he was to be co-surety with said Patchin, the defendant. The court below rendered judgment for the plaintiff, and the cause is brought here by appeal on the part of the defendant.

The court below finds that the plaintiff and defendant were successive endorsers, without any concert--any understanding or agreement between them, in regard to the manner of endorsing; there was nothing to show that the plaintiff was to occupy any other position than as second endorser--nothing that they were to be joint sureties--co-securities for Clarkson.

When two or more persons are sureties for another, the law implies a promise from each to contribute equally towards any loss which may be occasioned thereby. If they become sureties by successive endorsements on mercantile paper--as that is a form of contract, which, in general, binds the first...