Owings v. Davenport
| Decision Date | 14 February 1928 |
| Docket Number | 12374. |
| Parties | OWINGS v. DAVENPORT. |
| Court | South Carolina Supreme Court |
Appeal from Greenville County Court; M. F. Ansel, Judge.
Action by G. W. Owings against W. H. Davenport. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
The court's charge and the first two exceptions as appearing in the transcript of record are as follows:
Mr Foreman and Gentlemen of the Jury: I will read you the pleading (reads). This action is based on the fact that he is surety, and it had to be presented to him, or he would not be liable, and that the plaintiff had promised to extend the time of payment, which would relieve the surety from responsibility.
I charge you the rule of evidence on this side of the court is when a plaintiff sues a defendant he must prove his case by the preponderance of the evidence, the greater weight of it not necessarily the greater number of witnesses, but that evidence which brings conviction to your minds as to the truth of the transaction.
If the defendant sets up in his answer an independent defense, he must prove it by the preponderance of the evidence.
I will read you the note introduced in evidence (reads): "The maker, drawer, and indorser and guarantors severally waive presentment before payment-demand and protest and notice of protest and dishonor of note." I charge you whoever indorses that note is as much bound as the original maker because they all strictly waive the right of presentation. I will read you from section 3762, volume 3, of the Code: "A waiver of protest whether in the case of a foreign bill of exchange or other negotiable instrument, is deemed to be a waiver not only of a formal protest, but also of presentment and notice of dishonor." Also section 3760: "Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice and the waiver may be express or implied." I base my ruling on that section of the law. A man has the right to waive it. Also reads section 3718-what is an indorser.
It is a question for you to determine-Was this note executed by A. R Putnam, and was any indorsement put on it by Davenport? If you are satisfied by the preponderance of the evidence it was made by Putnam and indorsed by Davenport, then he is bound by what is in that note. If he wants to, he can indorse it for 100-he could say I sign surety for 100, but, if he indorsed it without anything but the name, he is liable for what is in the note, if it is a valid and legal note. You have heard the testimony as to whether or not any money was loaned and all the circumstances. The law does not allow me to tell you any of the facts because you are the judge of them. It is my duty to give you the law. If I am wrong, I can be corrected by a higher court. You apply the facts you have heard to the law, and find your verdict accordingly.
Was there any extension of time-was there any agreement to extend it if certain things were done? Extending the time might relieve the surety on bond-if any note due ten days after date and the owner should extend the time without notice to the surety, then the surety would be relieved because his contract was to pay it at a certain time. Was there any contract between Owings, payee, and Davenport in reference to this note-was it to be extended? Was there any contract between the parties to extend it, and, if so, was it carried out, and was the extension given? I charge you, when a man signs a paper, he is bound by what is in it, and is not excused because he is expected to read it. The court has said he is bound by it even if he cannot sign his name. Therefore, if the note was for 1,000, and the defendant thought it 100-he is supposed to read it, lest fraud be set up in the answer.
If you are satisfied Putnam signed and Davenport indorsed it, and no part of it has been paid, then the plaintiff is entitled to the full amount with interest and 10 per cent. attorney's fees. If you are not satisfied by the preponderance of the evidence that he is liable according to the law and the facts. you say: "We find for the defendant," and sign your name as foreman. I will give you the note that has been introduced in evidence so you can take it with you. If you find by the preponderance of evidence the plaintiff is entitled to a verdict, you say: "We find for the plaintiff the amount, calculating the interest and attorney's fees." Whatever you believe the truth to be let it be manifested by the verdict you render.
Exceptions.
In due time defendant served on plaintiff's attorney notice of intention to appeal to the Supreme Court from the orders, rulings, and judgment in this case upon the following grounds and exceptions:
(1) Because his honor, the county judge, erred in expressing his opinion in his ruling before the jury during the introduction of testimony, when he expressed himself in the following words: "What difference does it make whether he was accommodation indorser or not-he is just as much liable"-same being (a) on the facts; (b) incorrect, misleading, and prejudicial to defendant.
(2) Because his honor, the county judge, erred in expressing his opinion in his ruling before the jury during the introduction of testimony, as follows: -same being (a) on the facts; (b) incorrect, misleading, and prejudicial to defendant.
Jno. C. Henry, of Greenville, for appellant.
Dean, Cothran & Wyche, of Greenville, for respondent.
THURMOND, A. A. J.
This action was commenced in January, 1925, in the Greenville county court on the note hereinafter set out in full and came on for trial March 1, 1926, before Judge Ansel and a jury, and resulted in a verdict for the plaintiff for the amount demanded.
The complaint is in the usual form against an indorser on a promissory note.
The answer sets up a number of defenses, to wit, a general denial; that the defendant was a surety only on the note, and it was so agreed, understood, and intended between the parties; that at its maturity the note was not presented for payment, and for that reason the defendant was discharged from liability thereon; that, after defendant indorsed said note, he did not know it was unpaid until December 20, 1924 after Putnam, the maker, was adjudicated a bankrupt; that defendant never saw the note after indorsing it until the reference was held in said bankruptcy matter; that plaintiff, without the knowledge or consent of the defendant, agreed to extend the time for the payment of the note in controversy in this case from August 13, 1924, t o November 13, 1924, without the knowledge or consent of the defendant and to his prejudice, and this discharged the defendant from liability thereon; that the plaintiff accepted $20.40 as interest to November 13, 1924, as consideration for said extension; that the plaintiff was guilty of negligence and laches for failing to enforce his legal remedies in the courts against Putnam, the principal, and to reduce his claim to judgment when same was collectible, and delayed action for seven months and four days after maturity date, and until Putnam was adjudicated a bankrupt; that he was then forced to take his place as an unsecured creditor, when he...
To continue reading
Request your trial