Norwood Nat. Bank v. Piedmont Pub. Co.

• Decision Date: 28 February 1917
• Docket Number: 9590.
• Citation: 91 S.E. 866,106 S.C. 472
• Parties: NORWOOD NAT. BANK v. PIEDMONT PUB. CO. ET AL.
• Court: South Carolina Supreme Court

91 S.E. 866

106 S.C. 472

NORWOOD NAT. BANK v. PIEDMONT PUB. CO. ET AL.

No. 9590.

Supreme Court of South Carolina

February 28, 1917

Appeal from Common Pleas Circuit Court of Greenville County; T. J Mauldin, Judge.

Action by the Norwood National Bank against the Piedmont Publishing Company, George R. Koester, and Lewis W Parker. Judgment for defendants, and plaintiff appeals. Reversed, and judgment ordered for plaintiff.

McCullough Martin & Blythe, of Greenville, for appellant.

Oscar Mauldin and Cothran, Dean & Cothran, all of Greenville, for respondents.

WATTS J.

This was an action by plaintiff against the defendants on a promissory note. After issue joined the cause was tried before Judge Mauldin and a jury at the summer term of court for Greenville county, 1916. At the trial it was announced that the defendant Lewis W. Parker had died, and by agreement and under the order of the court W. H. Parker and Hamlin Beattie, his executors, were made parties defendant in his stead. It was further agreed that, in the event the plaintiff recovered in the action, the plaintiff's attorney's fees were to be fixed at $25. At the close of all the testimony in the case, both plaintiff and defendants moved for a directed verdict in their behalf. His honor, the presiding judge, refused the motion for a directed verdict made in behalf of the plaintiff, and granted that of the defendants, and directed a verdict in their favor. After entry of judgment plaintiff appealed, and by 16 exceptions imputes error on the part of his honor.

Exceptions 1 and 2 complain of error in excluding certain evidence offered by the plaintiff. Exceptions 3, 4, 5, 6, 7, and 8 complain of error in directing a verdict in favor of the defendants. Exceptions 9, 10, 11, 12, and 13 complain of error in not directing a verdict in favor of the plaintiff. Exception 14 complains of error on the part of his honor in his construction of the allegations of the plaintiff's complaint, and exceptions 15 and 16 complain of error in not allowing motion to amend the complaint.

We will not attempt to discuss the exceptions separately. The undisputed evidence in the case shows that the defendant Piedmont Publishing Company borrowed from the plaintiff $5,000 upon a note for that amount, signed on the back by Koester and Parker. This note was renewed from time to time. The last renewal was dated November 4, 1914; each time being signed upon the back thereof before being presented by the defendants to the plaintiff. The note by its terms fell due on February 2, 1915, and was not paid. It was presented for payment at proper place, and a credit made thereon for $410.97, the amount in deposit to the credit of the defendant Publishing Company. The cashier of the bank took the matter up with Koester, and by understanding with him placed a further credit on the note for $60. About noon on February 3, 1915, Koester, who was president and editor of the Publishing Company, as well as signer on the back of note, and who understood the situation fully, went to the bank and asked that the note be renewed on the same terms and with the same signers as before. This was declined, but a proposition made by the bank, which was not accepted and carried out by the defendants; but Koester discussed the situation with Parker, explaining the financial situation of the Publishing Company and its inability to pay this note. On the afternoon of this same day, February 3, 1915, between 3 o'clock and 6 o'clock, the note was duly protested, and notice of presentment and dishonor, postage prepaid, was duly mailed to both of the defendants Koester and Parker.

The evidence shows that both defendants had their mail delivered to their rented boxes in the post office, and in the usual course of delivery such delivery would be made within 45 minutes after mailing; that is, between 3:45 o'clock and 6:45 o'clock in the afternoon of February 3, 1915. At the trial the plaintiff established these facts by proof. The judge directed a verdict in favor of the defendants, upon the ground that they were indorsers, and had not been notified of the protest and dishonor of the note as the law requires. He put it on the ground that in one paragraph the complaint says that--

"so and so made a certain note and alleges that the other defendants indorsed the note. As I see it, the complaint is a proceeding upon the theory of maker and indorser. I am going to direct a verdict in this case in favor of the two defendants L. W. Parker and George R. Koester, upon the grounds stated."

Under the allegations of the complaint the plaintiff had the right to show that the defendants had written their names on the back of the note and indorsed the same,...