Pollard v. Huff

• Decision Date: 30 April 1895
• Citation: 44 Neb. 892,63 N.W. 58
• Parties: POLLARD ET AL. v. HUFF ET AL.
• Court: Nebraska Supreme Court

44 Neb. 892

63 N.W. 58

POLLARD ET AL.

v.HUFF ET AL.

Supreme Court of Nebraska.

April 30, 1895.

Syllabus by the Court.

1. An agreement in the following form: “For value received, we hereby guaranty payment of the within note at maturity, or any time thereafter, waiving protest and notice of nonpayment,”-- held not a mere guaranty, but an indorsement with an enlarged liability.

2. An accommodation note or bill, within the meaning of the law merchant, is one which is made or accepted, not upon a consideration, but for the purpose of enabling the payee or holder to raise money on credit.

3. Evidence examined, and held not to sustain the verdict and judgment in favor of the defendants as makers of the notes in controversy.

Error to district court, Lancaster county; Strode, Judge.

Action by H. M. Pollard and John P. Camp, assignees of D. W. Haydock, against E. T. Huff, Frank P. Lawrence, and E. S. Hawley. From the judgment rendered, plaintiffs bring error. Reversed.Atkinson & Doty, for plaintiffs in error.

J. E. Philpott, Davis & Hibner, and Field & Holmes, for defendants in error.

POST, J.

This is an error proceeding from the district court of Lancaster county. It appears from the transcript filed with the petition in error that two actions were commenced in the court below by the plaintiffs in error, as assignees of D. W. Haydock, insolvent, to recover from the defendants therein, who are also defendants in error, on three promissory notes, bearing date of August 24, 1891, each for $1,407.78, due in three, six, and nine months, and bearing interest at the rate of 8 per cent. per annum from date. Said causes were, by order of the court, consolidated for trial, and will, for the purpose of this proceeding, be treated as one action.

The transactions out of which the controversy arose are exceedingly complicated, and have required repeated examinations of a voluminous transcript, and also of a bill of exceptions so inartistically prepared as to impose upon this court much additional labor. The undisputed facts, as disclosed by the pleadings and proofs, may be summarized as follows: (1) In the year 1890 the Lawrence Implement Company, a Nebraska corporation, whose place of business was in the city of Lincoln, was indebted to D. W. Haydock, of St. Louis, Mo., for merchandise, in the sum of $5,263. (2) September 24th of that year said corporation, by its president, F. P. Lawrence, one of the defendants, executed in favor of E. S. Hawley, also a defendant, its promissory note for $2,500, payable January 1st after date, with interest at 10 per cent., the consideration therefor being the corporate indebtedness aforesaid to Haydock. At the same time said note was indorsed by the defendants as follows: “For value received, we hereby guaranty payment of the within note at maturity, or at any time thereafter, waiving protest and notice of nonpayment. F. P. Lawrence. E. T. Huff. E. S. Hawley.” (3) December 15th following, said company executed its note to the said D. W. Haydock for the sum of $2,622.60, due May 3, 1891, with interest at 8 per cent., which note was at the same time indorsed by the defendants as follows: “For value received, I hereby guaranty the payment of the within note, and any renewal of the same, and hereby waive protest and notice of nonpayment and suit against the maker, and consent that the payment of this note may be extended from time to time without affecting my liability thereon. Frank P. Lawrence. E. T. Huff. E. S. Hawley.” (4) March 3, 1891, said implement company executed its note in favor of said Haydock for $4,500, due one day after date, and on the 9th day of the same month it executed a note in favor of the same payee for $763.61, due one day after date, without consideration other than the indebtedness above mentioned. (5) March 9, 1891, suit was brought on the note of $4,500, aided by attachment, and on March 11th the implement company, by its president, F. P. Lawrence, answered, admitting all the allegations of the petition, and authorizing judgment against it for the amount claimed, which was rendered accordingly, accompanied by an order for the sale of the property seized under and by virtue of the order of attachment. Judgment was subsequently recovered on the note for $763.71, although nothing has been realized on either, and both judgments, as well as the original indebtedness, are wholly unsatisfied. (6) March 12, 1891, action was brought by Haydock, as holder, against these defendants, on the note of $2,500, dated September 24, 1890, and an order of attachment procured against Hawley and Huff, on an affidavit charging that they were about to convert their property into money, with intent to defraud their creditors, and had assigned, removed, and disposed of their property with like fraudulent intent; and, on May 14th following, suit was brought by Haydock on the note of $2,622.60, dated December 15, 1890. (7) April 24, 1891, the attachment last mentioned having been discharged as to Huff on the ground that the statements of the affidavit therefor were untrue, the latter commenced an action against Haydock on the bond given to secure said order. (8) August 24, 1891, the three actions then pending were settled, and subsequently dismissed, the order of dismissal in each case being based upon a written stipulation substantially in the following form, varying only with the titles of the several causes and the signatures of the parties: “Daniel W. Haydock v. Frank P. Lawrence, E. S. Hawley, and E. T. Huff. It is understood and agreed that the assignees of Daniel W. Haydock, being H. M. Pollard and John M. Camp, shall and do hereby dismiss the above-entitled suit, and pay the costs of the same for certain valuable consideration.” The considerations to which reference is therein made were: First, the allowance by the plaintiffs of a credit in the sum of $1,260, as damage in the suit by Huff on the attachment bond given by Haydock; second, the execution by defendants of the three notes in suit, which represent the amount of Haydock's claim on the prior...