Rickey v. Dameron

• Decision Date: 31 March 1871
• Parties: WILLIAM C. RICKEY et al., Plaintiffs in Error, v. LOGAN D. DAMERON, Defendant in Error
• Court: Missouri Supreme Court

48 Mo. 61

WILLIAM C. RICKEY et al., Plaintiffs in Error,

v.LOGAN D. DAMERON, Defendant in Error

Supreme Court of Missouri.

March Term, 1871.

Error to St. Louis Circuit Court.

Sharp & Broadhead, for plaintiffs in error.

I. The bill was drawn by both Dameron Brothers and Logan D. Dameron, on the plaintiffs, when both parties knew that plaintiffs had no funds belonging to either of them in their hands.

II. The draft was not indorsed by the defendant in the ordinary course of mercantile dealing, and he is not an indorser in the strict sense of the law merchant.

III. When the drawee of a bill of exchange accepts the bill, the presumption is that he has funds of the drawer in his hands. But this presumption may be rebutted; the drawee may show that he accepted and paid the bill for the accommodation of the drawer (19 Barb. 409); and then the law will imply an undertaking on the part of the drawer to indemnify the acceptor, who, on such implied obligation, may have his action against the drawer. And if one of several drawers joins as principal, and the others as sureties, there is an implied obligation on the part of the drawer to indemnify him, and he may have his action against them all as for money paid to their use. (Dickerson v. Turner, 15 Ind. 4.) This is not upon the ground that one drawer is security for the other, but that both have joined in the request that the acceptor should accept and pay. And it is well settled that the acceptor of a bill who accepted and has paid it at the request of and for the accommodation of another person, can maintain an action against such other person for money paid to his use, at his request; and this is so, whether the person accommodated is a party to the bill or not. One paying money for another, pursuant to his request or direction, is entitled to have it refunded. (Wright v. Garlinghouse, 26 N. Y. 541.) In the case before the court both parties knew that they had no fnds in the hands of the acceptor. They both put their names upon the paper--one on the face of it, the other on the back of it. The defendant put his name on the back of the paper, not as indorser in the technical sense of the term, for he sold it to no one, and passed it to no one. Dameron Brothers still held the paper, and afterward negotiated it. When a party writes his name on the back of a promissory note, of which he is neither payee nor indorsee, he is liable as a maker. (Baker v. Block, 30 Mo. 225.) The plaintiffs in this case having accepted and paid for the accommodation of both parties, they are both liable. (2 Edw. Bills, 533; Baker v. Martin, 3 Barb. 634.)

Ewing & Holliday, for defendant in error.

I. Successive accommodation indorsers are responsible only in the order of their indorsement, unless there is an agreement between them to stand as co-sureties. (McNeilly v. Patchin, 23 Mo. 40.) If the averments in the petition are true, the plaintiffs and defendant both appeared on the bill as accommodation parties, without any agreement between them. The plaintiffs, being acceptors, are liable before the indorsers.

II. Where a person indorses a note in blank, not being payee, and indorses before the payee, he is held a joint promisor with the maker. (Powell v. Thomas, 7 Mo. 440; Lewis v. Harvey, 18 Mo. 74.) But where the payee of a negotiable note indorses the same for the accommodation of the maker, before delivery, although a surety for the maker, he is surety as indorser only, and not as a joint maker, and is entitled to all the rights of an indorser of negotiable paper as to demand and notice. (Deitz v. Corwin, 35 Mo. 376.)

III. The defendant, being an accommodation indorser, was entitled to demand and notice, and is only liable on the protested bill. The bill never was protested; he is not liable. (Dietz v. Corwin, supra;Merchants' Bank v. Easley, 44 Mo. 286; Baker v. Martin, 3 Barb. 634.)

IV. An accommodation acceptor is liable to an accommodation payee or indorser. (Weir v. Cox, 7 Martin, La., 368.) This case is exactly like the one at bar, except the parties seeking to recover are reversed. The accommodation indorser had to take up the bill, and he sued and recovered from the acceptor.

V. Sureties for the drawers, who sign as drawers, are not liable to the accommodation acceptors. (Griffith v. Reed, 21 Wend. 502; Suydam v. Westfall, 2 Denio, 205; Wright v. Garlinghouse, 26 N. Y. 539; Dickerson v. Turner, 15 Ind. 4.)

VI. An indorser may be liable to the acceptor, but it can only be on a special agreement, which must be alleged. For the method of alleging it, see Thompson v. Clubley, 1 M. & W. 212; see also Sparrow v. Chisman, 9 Barn. & C. 241.

CURRIER, Judge, delivered the opinion of the court.

A demurrer to the petition having been sustained, the plaintiffs bring the cause into this court by writ of error.

It appears from the petition that the commercial firm of Dameron Brothers drew their draft or bill of exchange upon the plaintiffs, whereby the plaintiffs were requested to pay to the order and charge to the account of the firm the sum of $2,000. Before the bill was put in circulation, the drawers, to whose order it was payable, indorsed it, and also, in order to give it additional credit and currency, procured its indorsement by the defendant. Prior to its acceptance the drawers had it discounted at the Exchange Bank of St. Louis, the...