Miller v. Clendenin

• Decision Date: 25 November 1896
• Citation: 26 S.E. 512,42 W.Va. 416
• Parties: MILLER. v. CLENDENIN et al.
• Court: West Virginia Supreme Court

26 S.E. 512

42 W.Va. 416

MILLER.

v.CLENDENIN et al.

Supreme Court of Appeals of West Virginia.

Nov. 25, 1896.

Notes—Joint Makers—Guarantors—Notice or Protest.

One makes a negotiable note to a payee, and others put their names on its back, the payee not indorsing it, and it is then delivered to payee. He may treat them all as joint makers, or he may treat the two putting their names on its back as indorsers or guarantors, as he chooses, unless he agrees, before or on delivery of the note, to treat them in a particular one of those characters. Unless he agrees to treat them as indorsers, no protest or notice of nonpayment is necessary to hold them as joint makers or guarantors.

(Syllabus by the Court.)

Error to circuit court, Mason county.

Action by C. C. Miller against J. E. Clendenin and others. Judgment for defendants. Plaintiff brings error. Reversed.

Tomlinson & Wiley, for plaintiff in error.

W. R. Gunn, J. S. Spencer, and C. E. Hogg, for defendants in error.

BRANNON, J. Miller brought an action upon a negotiable note made by Clendenin, payable to Miller, on the back of which Bar-bee & Mossman wrote their names, in which action the court gave judgment against Clendenin, but discharged Barbee & Mossman. Miller appeals.

Miller, the payee, did not put his name on the note, and, Barbee & Mossman having indorsed their names on it before delivery to the payee, the law is settled that Miller had the right to treat Barbee & Mossman as joint makers with Clendenin, Indorsers, or guarantors, just as he chose, unless there was an agreement between Miller and them to hold them as indorsers. Hansford v. Burton, 10 W. Va. 470; Long v. Campbell, 37 W. Va. 666, 17 S. E. 197; Milling Co. v. Watkins, 41 W. Va. 787, 24 S. E. 612. It is claimed, however, that there was such agreement, not pointed or express, but that an understanding existed, tantamount to an agreement, that Barbee & Mossman indorsed as indorsers, and were to be notified of nonpayment, and they were not notified, and so are not liable. The evidence is utterly inadequate to show such an understanding as will relieve them. Clendenin asked Miller to lend him $250, and Clendenin says, in evidence, "My recollection is that he told me I could have the money, if I could get indorsers or security, —I don't remember which." Clendenin asked him If he would take Barbee & Mossman, and he said that he would, but they must sign as individuals, not as a firm, they being partners. That is all that took place between Miller and any of the parties to the note before its delivery. Clendenin went to Barbee & Mossman, got the latter to draw the note, got their signatures, took it to Wiley, with whom Miller had left his check to be delivered on delivery of the note, and simply delivered thenote to Wiley for delivery to Miller; and Clendenin got the check, and Wiley delivered the note to Miller. Clendenin does not say that there was any agreement between him and Miller that Barbee & Mossman were to hold the character of indorsers, rather than any other character. If Miller had said that Clendenin was to get them to sign as indorsers, it might be said that the word "indorsers" would have its legal meaning, and even then it would be short evidence to deprive the creditor of the right which the law gave him upon such a note, —the right to treat them as makers, indorsers, or guarantors. But Clendenin is particular to say that he does not remember whether the word "indorser" or "security" was used. They would have different meanings in such case. Even if "indorser" were used, it would not, alone, tie Miller down to regard the parties as such, as it would be construed only in the...