Weeks v. Hickey

• Decision Date: 28 October 1930
• Citation: 151 A. 890
• Parties: WEEKS v. HICKEY et al.
• Court: Maine Supreme Court

151 A. 890

WEEKS

v. HICKEY et al.

Supreme Judicial Court of Maine.

Oct. 28, 1930.

Exceptions from Superior Court, Penobscot County.

Action by Mary C. Weeks against John H. Hickey and another. Case was heard before single justice. Rulings were made, and defendants except to first, third, fourth, and fifth rulings.

Exceptions sustained.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.

Mayo & Snare, of Bangor, for plaintiff.

Stanley F. Needham, of Oldtown, for defendants.

PATTANGALL, C. J.

Exceptions. Case heard before single justice. Right of exceptions reserved. The subject of the suit was a promissory note payable to Edgar B. Weeks, now deceased, of which Union Land Company, a corporation, was maker, signed by John H. Hickey treasurer of the company, and indorsed before delivery by John H. Hickey and Alice K. Hickey.

Mary E. Weeks, widow of Edgar B. Weeks, was administratrix of his estate, and, after the note was defaulted, indorsed same as administratrix and took it over to herself in payment of money due her from the estate.

The declaration was in usual form. Plea, general issue, with brief statement as follows:

"That the first and successive installments of said note as declared upon in Plaintiff's writ and declaration are barred by the Statute of Limitations, which Defendants hereby invoke.

"Also that with reference to all installments of said note which matured prior to July 16, 1927, no demand was made upon the maker and no notice of dishonor was given to Defendants as indorsers and no liability thereby accrued as to said Defendants on all installments of said note as declared upon in Plaintiff's declaration which matured prior to July 16, 1927."

Specifications of defense were required and filed:

"1. There is absence of consideration in the execution of the note as declared upon in plaintiff's declaration.

"2. Plaintiff is not a holder in due course of the instrument as set forth in plaintiff's writ and declaration.

"3. Defendants invoke the Statute of Limitation as a defense to their liability on the note as set forth in plaintiff's declaration.

"4. Defendants set up as a defense to their liability on the note as set forth in the plaintiff's declaration that their status on the note is that of 'indorsers' and that their liability thereon has not accrued because no legal notice has been given them of dishonor of the note by the maker.

"5. They did not promise in manner and form as plaintiff has alleged in her said writ and declaration."

The presiding Justice found the following facts:

"One John H. Hickey purchased from one Edgar B. Weeks certain shares of stock. He paid $1,800 in cash, and, for the balance due, executed a note of the Union Land Company, a corporation of which he, John H. Hickey, was treasurer, payable to Edgar B. Weeks, and endorsed by himself and his wife, Alice K. Hickey, and delivered the same to the said Edgar B. Weeks.

"The corporation received no benefit from the transaction, and the payee of the said note knew, or ought to have known, of this fact.

"No authority was shown for the corporation to execute an accommodation note.

"The note was payable in installments. Payments on the note were made as follows: July 23, 1920—$312.00, interest to July 16, 1920. $700.00, on principal.

"Subsequent payments, falling due, were not made.

"On July 16, 1927, presentment of the note was made, and due notice of default of payment was given to the endorsers. Likewise on July 16, 1928.

"The payee died, and Mary E. Weeks, the plaintiff, was appointed Administratrix of his estate. Subsequently, and after the default of payments on said note, the said Mary E. Weeks endorsed the note as Administratrix and took it over to herself in payment of money due her as beneficiary of said estate.

"No affidavit under Rule X was filed." [1] Rulings followed:

"1. That the note was for the accommodation of the endorsers, said John H. Hickey and Alice K. Hickey, the defendants.

"2. That the first defaulted payment dishonored the whole note.

"3. That no presentment of said note was necessary, nor notice of default of payment by the promisor, in order to hold the endorsers.

"4. That the Statute of Limitations was not properly pleaded as a defense to this action.

"5. That the defendants are liable upon said note."

Defendants excepted to the first, third, fourth, and fifth rulings.

The first finding was one of fact, and, had it support in evidence, it would be conclusive on this court. Randall v. Kehlor, 60 Me. 37, 11 Am. Rep. 169; Kneeland v. Webb, 68 Me. 541; Reed v. Reed, 70 Me. 504; Viele v. Curtis, 116 Me. 328, 101 A. 966; Ayer v. Harris, 125 Ale. 249, 132 A. 742. But such a finding, unsupported by evidence, is subject to exceptions. Chabot v. L. T. Chabot, 109 Me. 405, 84 A. 892; Edwards v. Goodall, 126 Me. 254, 137 A. 692. There is no evidence in the record even tending to support the proposition that the note in question was for the accommodation of Alice K. Hickey. The finding is error so far as she is concerned.

The second exception reveals a similar situation.

The third finding was based upon the proposition that "presentment for payment is not required in order to charge an indorser where the instrument was made or accepted for his accommodation and he has no reason to expect that the instrument will be paid if presented." Section 80, c. 257, Pub. Laws 1917.

The evidence warranted a finding that presentment and notice of default of payment was unnecessary so far as John H. Hickey was concerned, but there is nothing upon which to predicate such conclusion with regard to Alice K. Hickey. She was clearly entitled to notice of default of payment. No such notice was given her until long after the instrument was dishonored. Lack of reasonable notice relieved her from liability. Section 66, c. 257, Pub. Laws 1917.

The third exception is to the finding that "the Statute of Limitations was not properly pleaded as a defense to this action."

Defendants pleaded the general issue with brief statement which contained the following paragraph: "That the first and successive installments on said note as declared upon in plaintiff's writ and declaration are barred by the Statute of Limitations, which defendants hereby invoke."

Plaintiff moved for specifications of...