QUARRIER'S ADM'R v. HEIRS.

• Decision Date: 26 March 1892
• Citation: 36 W.Va. 310
• Parties: QUARRIER'S ADM'R v. QUARRIER'S HEIRS et al.
• Court: West Virginia Supreme Court

36 W.Va. 310

QUARRIER'S ADM'R

v.QUARRIER'S HEIRS et al.

Supreme Court of Appeals of West Virginia.

Submitted February 12, 1892.

Decided March 26, 1892.

Qcarrier's Adm'ro. Quarribr's Heirs et at.

1. Promissory Notes and Bills of Exchange Endorsement.

A note made by the Splint Coal Company to Laidley bears upon its back indorsed first the name of Laidley, next the name of Quarrier, and is in the hands of an assignee. The paper and indorsments import that Laidley is bound as first and Quarrier as second assignor. Money realized by an assignee and applied on tl e note from a collateral security assigned by Laidley would ccnstitute no demand against Quarrier, Laidley being liable before Quarrier. (p. 312.)

2. Evidence.

Quarrier being dead, Laidley can not give evidence against Q carrier's estate of a personal transaction with Quarrier to show that in fact Quarrier became bound as joint promisor with, or guarantor for, the Splint Coal Company, because of his incompetency under section 23, c. 130, Code. (pp. 314, 315.)

3. Statute of Limitations New Promise.

A promise to pay the "agreed balance on your judgment" is not gcod as a new promise, the amount of.such agreed balance not appearing. If such balance refer to one thereafter to be agreed upon, and it does not appear that any balance was agreed, the promise is inoperative. (p. 310)

4. Statute of Limitations New Promise.

A new promise must not be uncertain. It must acknowledge a ixed sum, or a balance which admits of ready and certain ascertainment, (p. 310.)

Flournoy § Price and J. M. Laidley, of counsel for appellants cited 22 How. 341; 50 Otto 90; 10 W. Va.470; 13 111. 682; 44 Me. 443; 9 Gray 337; 5 Munf 352; 4 Call. 503, 504; 9 Leigh. 473; 2 Rob. (New) Pr. 270, 276, 281, 490, 491, 493; 61 Am. Dec. 507; 7 Gratt. 189; 18 W. Va, 274; 2 Tex. 541; 4 Pick. 110.

G-. S. Couch and Mollohan $ McClintic for appellee cited 14 W. Ya. 211.

Brannon, Judge:

In a chancery suit brought by Lewis, administrator of William A. Quarrier, deceased, against the widow and heirs of Quarrier, to administer his estate, two demands against said estate were presented one by George S. Laidley as assignee of James M. Laidley, the other by J. H. Grogan; and, the same having been disallowed by the Circuit Court of Kanawha county, said Laidley and Grogan have appealed to this Court.

First, as to the Laidley debt. James M. Laidley conveyed land to the Splint Coal Company; and for part of the purchase-money that company executed to Laidley a note for one thousand, seven hundred and seventy two dollars and twenty five cents, dated 29th December, 1870, payable three years after date. On the back of this note are First, the signature of the payee, James M. Laidley; and, second, the name of William A. Quarrier; and James H. Brown became its owner as assignee, and he assigned it to J. P. Brown, and he obtained a judgment upon it against the Splint Coal Company, and issued execution, which was returned unsatisfied.

James H. Brown had recovered a judgment against James M. Laidley, and James M. Laidley was owner of a certain judgment in favor of Pierce against Clarkson; and, before James Brown became owner of the Splint Coal Company's note, Laidley had assigned to Brown one half of this Pierce-Clarkson judgment as collateral security for the judgment in favor of Brown against Laidley, and J. F. Brown collected half of the Pierce-Clarkson judgment, six hundred and twenty seven dollars and ninety two cents, and he applied that sum as a partial payment on said uote of the Splint Coal Company, or rather on the judgment on it. Afterwards, James F. Brown assigned the said note to Benjamin Brown, and he filed his claim for the said debt, subject to the said credit of six hundred and twenty seven dollars and ninety two cents, and it was allowed him against. Quarrier's estate.

J, F. Brown executed a writing reciting that J. N. Clarkson and J. M. Laidley were judgment-debtors of James H. Brown, and that Laidley had assigned, as addi- tional security to Brown, half of a judgment in the name of Samuel Pierce against Clarkson, and that Brown had accepted notes of the Splint Coal Company to Laidley for the amount of Brown's judgment against Laidley, one of which notes had been assigned by James H. Brown to J. F. Brown, on which note he had recovered judgment, and that James M. Laidley had afterwards assigned said Pierce judgment to G. S. Laidley, subject to the assignment of one half of it to James H. Brown, and that J. F. Brown had collected and appropriated the said half, amounting to six hundred and twenty seven dollars and ninety two cents, to the judgment so recovered by J. F. Brown against the Splint Coal Company, by reason whereof J. M. Laidley or his assignee was entitled to substitution to said Brown's rights in said judgment pro tanto; and therefore said J. F. Brown assigned to George S. Laidley, assignee of J. M. Laidley, six hundred and twenty seven dollars and ninety two cents of said judgment against the Splint Coal Company last to be paid on the same, it being the intent to substitute Laidley in the shoes of Brown to the extent of said credit of six hundred and twenty seven dollars and ninety two cents. This sum of six hundred and twenty seven dollars and ninety two cents was the demand so presented in this suit by George S. Laidley, as assignee of Jan es M. Laidley, against Quarrier's estate. The balance of the note, after crediting the six hundred and twenty seven dollars and ninety two cents, was decreed to Benjamin Brown.

Quarrier's estate defended said demands under the statute of limitations. Now, viewing the note only, and the two narres James M. Laidley first, and Quarrier second indorsed on it, we would have to say that James M. Laidley assigned it to Quarrier, and Quarrier to Brown, and that when Laidley's money, collected by J. F. Brown from the Pierce-Clarkson judgment, went to the partial payment of the Splint Coal Company's note, it was only Laidley's paying i liability of his own as first assignor of that note, and creating no liability on Quarrier, as the ultimate liability would be on Laidley to Quarrier's immunity. The paper is r on-negotiable, and Laidley is liable as first assignor; Quarrier after him as second. So it would he if the note were negotiable. That we are to regard them as liable in such light and order is confirmed by a paper signed by James M, Laidley, by Quarrier, and the Splint Coal Company, whereby they, in consideration of indulgence upon said note, describing it as "executed by the Splint Coal Company for one thousand, five hundred and seventy two dollars and twenty five cents, with interest from date, payable to James M. Laidley, and by him indorsed and transferred to William A. Quarrier, and by him indorsed and transferred to J. H. Brown," agreed to waive objection to indulgence, and not to plead the same or take advantage of it in any litigation that might arise in the enforcement of the note, "whether against the maker, indorsers, or assignors thereof."

The fact that Quarrier was assignor is also confirmed by a paper signed by Quarrier 1st November, 1879, agreeing not to take advantage of "any indulgence that may be given the principal debtor, or any assignor or indorser of the bond herein described and referred to, and not to plead the statute of limitations to any action that may be brought against me upon my assignment upon said bond;" here expressly calling his own relation to the pajier "my assignment."

It is, too, not unreasonable to say that as Laidley owed Brown the lien on the land, and was bound to remove it, as between him and the company, and Brown would only take the coal company's note if indorsed by Quarrier, it wTas only intended that Quarrier should guarantee for Laidley that is, become assignor, and thus satisfy Brown's demand for indorsement. Laidley was paying his own debt. Why may he not have asked Quarrier to guarantee for him? At any rate, why may not Quarrier have intended to be only bound as assignor?

But the claim of Laidley is that in fact Quarrier's liability is, not what the note and said writing would make it, but that he is a joint promissor with the Splint Coal Company in said note, or a guarantor thereof to Laidley; and he would support this claim on these facts: On 17th December, 1870, James M. Laidley sold to J. P. Hale "and associates" two tracts of land at one hundred thousand dol ars, three thousand dollars of which was in cash, thirty five thousand dollars to be paid on liens existing against the land, and the balance in future installments. The assocates of Hale in this purchase were William A. Quarrier and II. Clay Dickinson. Hale, Quarrier and Dickinson, wit i two others, as incorporators, were on 21st December, 1870, incorporated as the Splint Coal Company, and directed Laidley to make the deed for the land to that corporation. They were also large stockholders. At this time James H. Brown held judgments against Laidley, binding the land sold, and, to relieve the land of the lien, it was agreed between the parties that Laidley should propose to assign to Brown three notes of the said company, indorsed, respectively, by Hale, Dickinson, and Quarrier, for the amount of said judgment-liens, if Brown would release them; Brown agreeing, said Splint Coal Company made three notes of one thousand five hundred and seventy two dollars and twenty five cents each, payable...