National Exchange Bank v. Cumberland Lumber Co.

• Decision Date: 05 March 1898
• Citation: 47 S.W. 85
• Parties: NATIONAL EXCHANGE BANK v. CUMBERLAND LUMBER CO. et al.
• Court: Tennessee Supreme Court

47 S.W. 85

NATIONAL EXCHANGE BANK v. CUMBERLAND LUMBER CO. et al.

Supreme Court of Tennessee.

March 5, 1898.

Appeal from chancery court, Davidson county; H. H. Cook, Chancellor.

Bill by the National Exchange Bank against the Cumberland Lumber Company and others. There was a decree for complainant, which was affirmed by the court of chancery appeals, and defendants appeal. Affirmed.

James S. Pilcher and Marshall Morgan, for appellants. Stokes & Stokes, for appellee.

CALDWELL, J.

The bill in this cause was filed to enforce the collection of the following note: "$500. Nashville, May 13, 1895. Sixty days after date we promise to pay to the order of Rice Bros. five hundred dollars, at any bank in Providence, Rhode Island, value received. [Signed] Cumberland Lumber Co. Geo. Benedict, Prest., by O. Ewing, Tr.," — and indorsed on the back: "Geo. Benedict. O. Ewing. A. G. Ewing. I hereby bind my separate estate. H. C. Ewing." "Rice Bros." The suit was brought by the indorsee of the payees against the maker and indorsers. The chancellor rendered a decree for the amount of the note, with interest, against all of the defendants except Mrs. H. C. Ewing, a married woman. He adjudged her separate estate liable, and directed its sale, unless the decree should be paid in 30 days. The court of chancery appeals affirmed the action of the chancellor in all respects. The cause is before this court on appeal and assignment of errors.

It is apparent, from an inspection of the note and indorsements, as well as from the findings of fact by the court of chancery appeals, that George Benedict, O. Ewing, A. G. Ewing, and H. C. Ewing indorsed the note before its delivery to the payees, Rice Bros., who subsequently indorsed it to the complainant. This being so, the prior indorsers are to be treated, in this litigation, as makers, jointly with the Cumberland Lumber Company, and therefore liable for the payment of the note without proof of demand and notice. Morrison Lumber Co. v. Lookout Mountain Hotel Co., 92 Tenn. 9, 20 S. W. 292; Bank v. Jefferson, 92 Tenn. 537, 22 S. W. 211; Assurance Soc. v. Edmonds, 95 Tenn. 53, 31 S. W. 168; Good v. Martin, 95 U. S. 93.

The last observation answers the first objection of appellants, which is based on a contrary view of the law applicable to this case; and it also renders immaterial the several objections urged against the sufficiency of the demand and notice alleged by the complainant to have been made and given.

It can make no difference, in legal contemplation, that the note in suit was executed in renewal of a prior one to the same payees, and that upon a settlement of accounts between them the payees would have been indebted to the Cumberland Lumber Company in an amount sufficient to satisfy the prior note. A note executed for such a purpose and under such circumstances stands on the same footing, at least so far as the irregular indorsers are concerned, as an original note in like form and tenor. In either case, the presumption is that such indorsers put their names on the paper to induce its acceptance by the payees, and hence they are deemed in law co-makers as to...