Nat'l Exch. Bank v. Lubrano

• Decision Date: 04 March 1908
• Citation: 29 R.I. 64,68 A. 944
• Parties: NATIONAL EXCH. BANK v. LUBRANO.
• Court: Rhode Island Supreme Court

68 A. 944

29 R.I. 64

NATIONAL EXCH. BANK

v. LUBRANO.

Supreme Court of Rhode Island.

March 4, 1908.

Exceptions from Superior Court, Providence County.

Action by the National Exchange Bank against Michael Lubrano. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled, and case remitted, with direction to enter judgment upon the verdict.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Green, Hinckley & Allen, for plaintiff. Barney & Lee (Prince H. Tirrell, Jr., of counsel), for defendant,

PARKHURST, J. This is an action of the case to recover from the defendant the amount of a certain promissory note, with interest and protest fees thereon. The note, a copy of which was filed as a bill of particulars, reads as follows: "$400.00. Providence, R. L, Oct. 25, 1905. Ninety days after date we promise to pay to the order of the National Exchange Bank four hundred 00/100 dollars at the National Exchange Bank of Providence. Value received. No. —— Due Jan. 23. D. Di Luglio Co." Indorsed on back of note: "Michael Lubrano." The following is the first count of plaintiff's amended declaration: "National Exchange Bank, a banking corporation, located in the city and county of Providence, state of Rhode Island, complains of Michael Lubrano, alias John Doe, summoned by the sheriff, and whose property has been attached by the sheriff in an action of the case; for that D. Di Luglio and Michael Lubrano, doing business as D. Di Luglio Company, at Providence, on the 25th day of October, A. D. 1905, by their note of that date by them signed as D. Di Luglio Company, for value received, promised said plaintiff to pay it or order the sum of $400, 90 days after date, and the said defendant individually then and there indorsed and delivered said note to said plaintiff, and the said plaintiff, in Providence, on January 23, 1906, presented the said note then due and payable to the said makers, who then and there neglected to pay the same, whereof the defendant then and there had notice, and in consideration thereof promised to pay the plaintiff the same, when thereunto requested." The usual common counts follow. Before this case came on to be tried in the superior court the defendant demurred to the first count of the amended declaration as herein set forth, the ground for demurrer being that it appeared by said amended first count that the defendant's liability on the note set forth was a joint liability with one D. Di Luglio, and not a several liability. This demurrer having been overruled on April 16, 1907, the defendant duly excepted to such ruling. Also previous to the trial of said cause the defendant moved in writing that said D. Di Luglio be added as a party defendant, which motion on hearing was also denied, to which ruling the defendant duly excepted. At the trial of said cause on October 11, 1907, after the plaintiff's case was closed (the plaintiff, through its attorneys, four days prior to said trial, having been requested and notified to produce the books of the plaintiff corporation showing the account between the plaintiff and Domenico Di Luglio, under whatsoever name or names the same appeared, and the account between the plaintiff and said Di Luglio and Lubrano, under whatsoever name or names the same appeared, and sald plaintiff having failed to comply with said request), the defendant moved in writing that a subpoena duces tecum issue commanding the cashier of the plaintiff bank to bring into court such books of account, which motion was denied, to which ruling the defendant duly excepted.

The evidence presented by the plaintiff consisted in the production of the note before the jury, and the testimony of Edwin C. Potter, notary public, that the note was duly presented for payment; that payment was refused, the note was protested, and notice thereof duly mailed to the defendant No evidence was produced on behalf of the defendant; but at the close of the plaintiff's testimony, and after said motion for a subpoena duces tecum had been denied, it was moved that a verdict be directed for the defendant, which motion was denied, and defendant's exception noted. The plaintiff thereupon moved that a verdict be directed for the plaintiff, which motion being granted, defendant's exception was duly noted. There is no dispute that the amount of the verdict ($442.47) was correctly ascertained by the jury under the instruction of the court.

The defendant brings the case to this court on the following exceptions: (1) Because the court erred in overruling the defendant's demurrer to the first count of plaintiff's amended declaration; (2) because the court erred in refusing to grant the defendant's motion that Domenico Di Luglio be made a party defendant to said action; (3) because the court erred in refusing to grant the defendant's motion for writ of subpoena duces tecum as appears of record in said case; (4) because the court erred in refusing to grant the defendant's motion that a verdict be directed for the defendant in said case; (5) because the court erred in granting the motion of the plaintiff that a verdict for the plaintiff be directed in said case.

The first exception must be overruled. The declaration shows that the defendant, Lubrano, was a maker of the note as a partner with one D. Di Luglio, under the firm name of "D. Di Luglio Company," as signed on the note. If Lubrano had placed his name upon the back of the note before delivery, under the law of this state, as it existed prior to the passage of the "Negotiable Instruments Act" (chapter 674, p. 222, Jan., 1899), he would simply have become a joint maker of the note. As he was a maker already, his relation to the note would not have been changed, and his liability thereunder would neither have increased nor diminished. His act would simply have been nugatory. Under the negotiable instruments act, however, we think he may fairly be held to have made himself an indorser under the provisions of section 71, viz.: "A person placing his signature upon an instrument otherwise than as maker, drawer, or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity." See, also, Negotiable Instruments Act, p. 228, c. 674, § 25, cl. 6. See McLean v. Bryer, 24 R. I. 599, 54 Atl. 373; Downey v. O'Keefe, 26 R. I. 571, 59 Atl. 929; Deahy v. Choquet, 28 R. I. 338, 67 Atl. 421. In other words, we are of the opinion that the defendant, by so indorsing said note, added to his liability as maker a several and distinct liability as indorser, thereby making himself individually liable for the payment of the note, after due notice of...