Provident Sav. Life Assur. Soc. v. Edmonds

• Decision Date: 22 May 1895
• Citation: 31 S.W. 168,95 Tenn. 53
• Parties: PROVIDENT SAVINGS LIFE ASSUR. SOC. v. EDMONDS et al.
• Court: Tennessee Supreme Court

31 S.W. 168

95 Tenn. 53

PROVIDENT SAVINGS LIFE ASSUR. SOC. v. EDMONDS et al.

Supreme Court of Tennessee.

May 22, 1895

Appeal from chancery court, Sheeley county; Pierson, Chancellor.

Action by the Provident Savings Life Assurance Society against Messrs. Edmonds and White, executors of M. Burke. From a judgment for plaintiff, defendants appeal. Affirmed.

Edgington & Edgington, for appellants.

Frazer & Heath, for appellee.

WILKES J.

Suit is brought to recover from defendants, as executors of Mr Burke, on two notes, each for $3,500, made December 3, 1890 and due, respectively, in one and two years. The notes were signed by R. H. Baker and W. G. Baker, were payable to complainant company, and were indorsed by R. B. Panott and M Burke. M. Burke has died, and defendants, Edmonds and White are his executors. Upon the hearing the chancellor gave judgment for the amount of the two notes against the defendants as executors, and they have appealed and assigned errors.

We think it only necessary to pass upon the questions raised by the assignment, without disposing of them seriatim. It is insisted that Mr. Burke's liability on this note is that of an indorser, or, at most, a guarantor, and that there can be no recovery from him without proof of demand, protest, and notice. It appears from the proof that R. H. and W. G. Baker were stepsons of M. Burke, in whom he took a deep interest. Panott was the general agent of complainant company, and the Bakers were the agents of the company in California, and under the supervision of Panott. It also appears that the Bakers in the conduct of the business of the company in California had become indebted to the company in something over $8,000. In order to settle up this deficit, they executed their two notes, and Panott and Burke indorsed the same, and, after being indorsed, they were forwarded to and accepted by the company in satisfaction and settlement of the deficit of the Bakers. Under these facts, the liability of M. Burke is not that of an indorser of commercial paper, but that of a comaker with the Bakers, so far as the complainant company is concerned, and neither demand, protest, nor notice is necessary to fix his liability. Bank v. Jefferson, 92 Tenn. 537, 22 S.W. 211; Tied. Com. Paper,§§ 270-273.

It is again said that there is no valid legal consideration for the indorsement (1) because it was procured after the notes were executed and accepted upon the faith alone of the makers; (2) because the indorsement was in consideration of compounding a felony.

Without going into a lengthy discussion of the facts of the case, we think the evidence satisfactorily shows: That the Bakers had gotten behind with the company in the management of its affairs in California, and were indebted to the company in something over $8,000. Panott, the general manager of the company, was liable to make good this deficit to the company in the event it was not done by the Bakers. Burke, the stepfather, was interested in the welfare of the Bakers. Notes were prepared for $7,000 to compromise and settle the deficit, and they were executed by the Bakers, and handed to Panott, who returned them to the Bakers, to have them get the signature and indorsement of Burke. These notes in some way miscarried, and were not indorsed by Burke, and appear to have been lost. The notes now sued on were then prepared, and signed by the Bakers, and handed to Panott, and indorsed by him. They were then forwarded by Panott to Burke at Memphis and, after being indorsed by...