Watson v. Barr

• Decision Date: 07 November 1892
• Citation: 16 S.E. 188,37 S.C. 463
• Parties: WATSON v. BARR et al.
• Court: South Carolina Supreme Court

16 S.E. 188

37 S.C. 463

WATSON v. BARR et al.

Supreme Court of South Carolina

November 7, 1892

1. A complaint on a note against three defendants stated that "this action is founded upon an instrument for the payment of money only, made and delivered by defendants to plaintiff, of which the following is a copy: 'One day after date I promise to pay W. B. W., or bearer, $562.69 for value received. Witness my hand and seal. W. F. B. [Seal.] J F. B., W. D. B.;' the last two names being signed on the back of said note,"--and also alleged the amount due on the note, and claimed it. Held, that the complaint was sufficient in form under Code,§§ 163, 183, providing that a party shall state his case concisely, and, when it is founded on an instrument for the payment of money only, he may give a copy of the instrument, and claim the amount due him thereon from the adverse party.

2. The complaint stated a cause of action against all three defendants as makers of the note.

3. In such case an answer by the two defendants who signed on the back of the note, that they "do not admit that they are joint makers, with W. F. B., of said sealed note, but allege that it is a debt of said W. F. B., and that they wrote their names across the back thereof," did not traverse the issues of the complaint.

4. The mere forbearance to sue the principal on a note for three years will not release the sureties thereon, where they have made no request that suit be brought.

5. The mere neglect of the holder of a note to give notice of its nonpayment to the sureties thereon for the space of three years will not discharge the sureties.

Appeal from common pleas circuit court of Anderson county; I. D WITHERSPOON, Judge.

Action by William B. Watson against W. F. Barr, J. Feaster Brown and W. D. Brown on a note. From a judgment for plaintiff defendants Brown appeal. Affirmed.

Tribble & Prince, for respondent.

POPE J.

This action came on for trial at the June term, 1891, of the court of common pleas for Anderson county before his honor, Judge WITHERSPOON, and a jury. The verified complaint was as follows: "(1) That this action is founded upon an instrument, for the payment of money only, made and delivered by the defendant to the plaintiff, of which the following is a copy: 'Anderson, S. C., Feb. 22, 1888. One day after date I promise to pay W. B. Watson, or bearer, five hundred and sixty-two and 69-100 dollars, for value received. Witness my hand and seal. W. F. BARR. [L. S.] J. FEASTER BROWN. W. D BROWN,' the last two names being signed on back of said note. (2) That no part thereof has been paid except the sum of thirty-nine and ninety-one one hundredths dollars, balance of guano account, credited on said note May 1, 1889; and there is now due and owing this plaintiff on said note by said defendants the sum of five hundred and sixty-two and sixty-nine one hundredths dollars, with interest thereon at the rate of seven per cent. from 22d of February, 1888, less said credit of $39.91, which plaintiff claims and demands judgment for, together with the costs of this action." The defendants J. Feaster Brown and W. D. Brown answered as follows: For a first defense: "(1) That the complaint does not state facts sufficient to constitute a cause of action against these defendants, and they ask the same benefit thereof as if said complaint had been specially demurred to." For a second defense: "(2) These defendants do not admit that they are joint makers, with said W. F. Barr, of said sealed note, but allege that it is a debt of said W. F. Barr, and that they wrote their names across the back thereof." For a third defense: "(3) That the said plaintiff could have made his money against said W. F. Barr, who is now insolvent, by using due diligence in the prosecution of said demand against him within a reasonable time, and for want of due diligence, and having delayed an unreasonable time, to wit, three years, they submit that they cannot be held liable for said debt." For a fourth defense: "(4) That the said W. F. Barr is now insolvent, that the plaintiff neglected to give notice of the nonpayment of said note until said insolvency, that these defendants supposed it had been paid until within the last five months, that by plaintiff's laches the said debt has been lost as to said Barr, and they submit that they are discharged from said supposed liability. Wherefore they demand judgment that said complaint as to these defendants be dismissed." At the trial before Judge WITHERSPOON, judgment by default was taken against the defendant W. F. Barr, who failed to answer. The demurrer of defendants to the plaintiff's complaint was first heard and overruled, by an order therefor. The plaintiff then demurred to the answer of defendants, because the same failed to allege facts sufficient to constitute a defense. This demurrer was sustained, and an order for judgment given. After judgment had been duly entered, the defendants who answered appealed on the following grounds: "(1) Because his honor erred in overruling the demurrer interposed by the defendants J. Feaster Brown and W. D. Brown, and in failing to sustain the same. (2) Because his honor erred in sustaining the plaintiff's demu...