The Severy State Bank v. Hoyt

• Decision Date: 11 May 1918
• Docket Number: 21,266
• Citation: 103 Kan. 44,172 P. 994
• Parties: THE SEVERY STATE BANK, Appellee, v. G. N. HOYT, Appellant
• Court: Kansas Supreme Court

172 P. 994

103 Kan. 44

THE SEVERY STATE BANK, Appellee, v. G. N. HOYT, Appellant

No. 21,266

Supreme Court of Kansas

May 11, 1918

Decided January, 1918.

Appeal from Elk district court; ALLISON T. AYRES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PROMISSORY NOTE--Signed by Surety as Maker--Renewal Note Forged--Surety Liable on Original Note. A surety for a comaker signed a note as maker. The principal obtained a renewal by presenting to the holder a note signed by himself and purporting to be signed by the surety. The surety's signature was forged. The holder sued the principal and the surety in separate actions on the renewal note. The actions were consolidated and tried together. The only issue presented to the jury for its determination was whether or not the signatures to the renewal note were forged. The jury found a general verdict against the principal and in favor of the surety. The holder then sued the surety on the original note, which had been canceled and delivered to the principal when the renewal note was given. Held, judgment was properly rendered against the surety.

D. J Sheedy, and J. L. Stryker, both of Fredonia, for the appellant.

A. F. Sims, of Howard, and F. S. Jackson, of Topeka, for the appellee.

OPINION

BURCH, J.:

The action was one to recover on a promissory note. The plaintiff prevailed, and the defendant appeals.

In 1912 F. M. Seimers and L. C. Seimers, as principals, and the defendant, as surety, executed and delivered to the plaintiff their promissory note, for a consideration not now in dispute. The note was not paid at maturity, and in 1913 the plaintiff accepted a renewal note for the sum due, signed by the principals and purporting to be signed by the defendant. The old note was stamped paid and delivered to the principals. The renewal note was not paid at maturity, and the plaintiff brought two actions for the amount due, one against the principals and one against the defendant. Apparently the defendant was sued separately because he was a nonresident, and it was necessary to proceed against him by attachment. The defendant appeared, and the actions were consolidated and tried together. The defense in each case was that the signatures appearing on the note were not genuine. Judgment was rendered against the principals and in favor of the present defendant. The plaintiff then sued the defendant on the original note, with the result stated.

The main defense was that of res judicata. While the verdict in the former suit was a general verdict in favor of the defendant, the pleadings and the instructions, introduced in evidence in the present action, show that the sole issue determined was the genuineness of the signature to the renewal note. The present action is on a different note, which the defendant admitted he signed, and consequently the defense of res judicata was not sustained. ( Stroup v. Pepper, 69 Kan. 241, 76 P. 825.)

Another defense was that the defendant was an "accommodation indorser," that the note sued on had been marked paid and surrendered to the principal debtors, and...