Waterhouse v. Sterchi Bros. Furniture Co.

• Decision Date: 11 February 1918
• Citation: 201 S.W. 150,139 Tenn. 117
• Parties: WATERHOUSE v. STERCHI BROS. FURNITURE CO.
• Court: Tennessee Supreme Court

201 S.W. 150

139 Tenn. 117

WATERHOUSE v. STERCHI BROS. FURNITURE CO.

Supreme Court of Tennessee.

February 11, 1918

Error to Circuit Court, Rhea County; Frank L. Lynch, Judge.

Suit by the Sterchi Brothers Furniture Company against E. Waterhouse. Judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendant brings error. Affirmed.

WILLIAMS J.

Sterchi Bros. Furniture Company, defendant in error, brought suit against Waterhouse on a note in the sum of $1,287.14. In the declaration it was averred that:

The sum "was due by a promissory note here to the court shown made by Dayton Furniture Company to plaintiff, of which note defendant was indorser."

The declaration was demurred to, but the question discussed below was not raised by the demurrer. On the demurrer being overruled, the case was tried before the circuit judge without the intervention of a jury, and he rendered judgment against Waterhouse, who appealed to the Court of Civil Appeals. That court affirmed the judgment.

It appears that the defendant moved in arrest of judgment on the ground:

"The declaration avers that defendant is an indorser of the note sued on, of which the plaintiff is payee, but fails to allege that notice of dishonor was ever given defendant as such indorser, or that defendant had waived said notice."

The contention of the Sterchi Bros. Furniture Company is that the note was indorsed by Waterhouse before delivery, and that, if a bill of exceptions had been preserved by Waterhouse, as there was not, it would have shown the note with an indorsement on the back thereof above Waterhouse's name as follows:

"Protest, notice of dishonor and presentation is waived."

Such a note appears in the transcript but not identified as a part of the declaration or of any bill of exceptions.

The main assignment of error in this court by Waterhouse is that the motion in arrest should have been sustained.

The indorser of a note thus irregularly indorsed before delivery is entitled to notice of protest. Pharr v. Stevens, 124 Tenn. 669, 139 S.W. 730.

In Knott v. Hicks, 2 Humph. (21 Tenn.) 162, where the action was on a promissory note against indorsers, and there was no averment of notice of dishonor having been given to the indorsers, and no averment setting forth a legal excuse for the failure to do so, it was held that the omission in the declaration was subject to a motion in arrest, in that no cause of action whatever was set forth; the omission being one that was not cured by verdict. See, also, Railroad v. Maxwell, 113 Tenn. 464, 82 S.W. 1137, and cases cited.

We are persuaded that, notwithstanding this rule, the indorser cannot succeed on his motion in arrest. A distinction must be taken between that ruling and the pending case if it be true or if it must be assumed to be true that the note contract with its indorsement was in proof with waiver of demand, protest, and notice on the part of Waterhouse, as indorser.

The suit was based on the note. That instrument was not copied into the declaration so as to set forth the waiver, but profert was made of it, that being a formula in pleading whereby the pleader professes to bring into court an instrument to be shown to the court and to his adversary. It is true that mere profert of a note does not make the instrument, the foundation of the action, a part of the declaration, when that pleading is tested for sufficiency by a demurrer. Insurance Co. v. Thornton, 97 Tenn. 1 15, 40 S.W. 136. The court is confined to the face of the declaration in...