Rogers v. Palmer

• Decision Date: 04 February 1929
• Docket Number: No. 82.,82.
• Citation: 144 A. 574
• Parties: ROGERS v. PALMER.
• Court: New Jersey Supreme Court

144 A. 574

ROGERS

v. PALMER.

No. 82.

Court of Errors and Appeals of New Jersey.

Feb. 4, 1929.

Syllabus by the Court.

Appeal from Circuit Court, Monmouth County.

Action by Calvin Rogers against Georgianna Palmer, individually and as administratrix of the goods, chattels, rights, and credits of Elwood F. Palmer, deceased. Judgment for plaintiff against defendant in her representative capacity, and defendant appeals in such representative capacity. Affirmed.

Quinn, Parsons & Doremus, of Red Bank, for appellant.

Wilson & Smock, of Red Bank, for respondent.

KATZENBACH, J. This action was instituted in the Monmouth county circuit court by Calvin Rogers against Georgianna Palmer and in the alternative against the same defendant in her representative capacity as administratrix of the goods, chattels, rights, and credits of Elwood F. Palmer, deceased, upon three promissory notes. The first note was dated September 1, 1925. It was signed by Georgianna Palmer, and promised to pay, six months after date, to the order of Elwood F. Palmer (hereinafter referred to as Palmer) $1,200. It was indorsed by Palmer, and delivered to the plaintiff below, Calvin Rogers. The consideration of the note was property deeded by Rogers to Palmer. The second note was dated October 8, 1925. It was payable six months after date. The maker was Georgianna Palmer. The payee was Palmer. The note was indorsed by the payee, and delivered to Rogers, who gave Palmer his check for $700. This check was used by Palmer to pay for a property at Spring Lake, N. J., which he had purchased. The third note was dated September 26, 1925. It was payable six months after date. The maker and payee were the same. The payee, Palmer, indorsed the note, and delivered it to Rogers who gave Palmer his check for $500, which was used by Palmer to pay a deposit on the property at Spring Lake purchased by him. Each of the notes above the signature of Georgianna Palmer contained the words: "This note is given by me for the benefit of my personal estate, and the proceeds thereof are for my personal use." Georgianna Palmer was at the time of the making of the notes mentioned a married woman and the wife of the payee, Palmer. Notwithstanding the declaration upon the face of the notes, Mrs. Palmer received no consideration and was an accommodation maker, under the case of First National Bank v. Rutter, 91 N. J. Law, 424, 104 A. 138; Id., 92 N. J. Law, 621, 106 A. 371, since Rogers knew that Palmer was the actual beneficiary of the transactions.

Mr. Palmer died on January 15, 1926, intestate. His death occurred before the notes matured. The notes were not presented for payment at the bank where they were made payable, and were not protested. Mrs. Palmer was appointed administratrix of Mr. Palmer's estate. The holder of the notes commenced suit thereon against Mrs. Palmer, personally and in her capacity as administratrix of her husband's estate.

The answer set up the defense as to Mrs. Palmer that she was a married woman and not answerable under the Married Woman's Act (3 Comp. St. 1910, p. 3222), for the debt of her husband. As to the estate of Mr. Palmer, the defense was that the notes were not protested, and no notice of dishonor was ever sent or received by the defendant, as required by section 89 of the Negotiable Instruments Act (3 C. S. 1910, p. 3745). The case was referred to the inferior court of common pleas of the county of Monmouth for trial. The judge of that court tried the case without a jury. Judgment was rendered against the defendant, Georgianna Palmer, in her representative capacity, for the face of the three notes with interest. From this judgment, Georgianna Palmer, in her representative capacity, has appealed to this court.

The contention is advanced by the appellant that the court below erred in entering judgment against her, as administratrix, because there was no proof that notice of dishonor had been given to Mr. Palmer; that his position upon the notes was that of indorser; that it was erroneous for the trial court to disregard the position of the signatures upon the notes and find, as the court must have done to reach the conclusion it did, that Palmer was the maker of the notes, when it was not the intention of the parties to the notes that he should be placed in this position.

We do not consider this position tenable. It is based on the assumption that the position of Palmer was that of an indorser only. It ignores the evidence that Palmer was the real party in interest and the one who received the benefit of the notes. The testimony is uncontradicted that, as to the first note, he received the consideration thereof in the form of property, and, as to the second and third notes, he received from Rogers his checks which were collected and applied on purchases of real estate by and for the benefit of Palmer. These facts made Palmer the person for whose benefit the notes were made. He was actually the real maker of the notes and the sole beneficiary of the transaction, not an indorser. The question involved in this appeal is whether presentment of a note must be made and notice of dishonor be given to one occupying the position of indorser on a promissory note, when he is actually the real maker of the instrument and primarily liable thereon. We think this question answered adversely to the appellant's contention by several portions of...