Montana Coal & Coke Co. v. Cincinnati Coal & Coke Co.

• Decision Date: 05 January 1904
• Court: Ohio Supreme Court
• Parties: MONTANA COAL & COKE CO. v. CINCINNATI COAL & COKE CO. et al.

69 Ohio St. 351
69 N.E. 613

MONTANA COAL & COKE CO.
v.
CINCINNATI COAL & COKE CO. et al.

Supreme Court of Ohio.

Jan. 5, 1904.

Error to Circuit Court, Hamilton County.

Action by the Montana Coal & Coke Company against the Cincinnati Coal & Coke Company and others. Judgment for defendants was affirmed in the circuit court, and plaintiff brings error. Affirmed.

On February 1, 1896, the defendant in error the Cincinnati Coal & Coke Company executed and delivered to the plaintiff in error, the Montana Coal & Coke Company, a promissory note, of which the following is a copy:

‘$1,654.39. Cincinnati, Feb. 1, 1896.

‘Ninety days after date the Cinti. Coal & Coke Co. promise to pay to the order of Montana Coal & Coke Co. sixteen hundred fifty-four and thirty-nine one-hundreth dollars, payable at Northern Bank, Covington, Ky., value received.

‘A. Montgomery, Pres.

‘L. Stock, Sec'y & Treas.’

On the back of said note appear the following indorsements:

‘A. Montgomery & Co. Marshall McDonald.’

The consideration for the note was coal sold by the plaintiff in error to the defendant in error the Cincinnati Coal & Coke Company, prior to its date. The Cincinnati Coal & Coke Company, when the money was due, requested an extension of time for payment, and the plaintiff in error agreed to extend the time for payment, provided that the Cincinnati Coal & Coke Company would execute and deliver to the plaintiff a 90-day note, indorsed by A. Montgomery & Co. and Marshall McDonald. A. Montgomery & Co. did so indorse said note on the back thereof at Covington, Ky., prior to the delivery of the note to the plaintiff in error. The Cincinnati Coal & Coke Company thereupon sent said note to Marshall McDonald, at Pittsburg, Pa., and he there indorsed his name on the back of said note after the indorsement of A. Montgomery & Co., and returned the said note to the Cincinnati Coal & Coke Company, at Cincinnati, Ohio, after which the Cincinnati Coal & Coke Company delivered the note to the plaintiff in error, the Montana Coal & Coke Company, at Cincinnati, Ohio. The note, on default, was not protested, nor was notice of nonpayment given to Alexander Montgomery, the surviving partner of A. Montgomery & Co., nor to Marshall McDonald or his legal representatives. The note was never discounted or negotiated at any bank in the state of Kentucky. No suit was instituted to compel the Cincinnati Coal & Coke Company to pay the note in any court prior to this suit. Each of the circuit courts of the state of...