Whitcomb v. National Exch. Bank of Baltimore
| Decision Date | 25 June 1914 |
| Docket Number | 33. |
| Citation | 91 A. 689,123 Md. 612 |
| Parties | WHITCOMB v. NATIONAL EXCH. BANK OF BALTIMORE. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Carroll T. Bond Judge.
"To be officially reported."
Action by the National Exchange Bank of Baltimore City against James A. Whitcomb. From a judgment for plaintiff, defendant appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and CONSTABLE, JJ.
Charles F. Carusi, of Washington, D. C. (Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellant. G. Ridgely Sappington and Charles G. Baldwin, both of Baltimore, for appellee.
The Negotiable Instruments Act, forming article 13 of the Code of Public General Laws, provides by section 141 as follows:
In view of this provision the court below declined to submit for determination as an issue of fact the question whether there had been an oral agreement for the release of the defendant as an indorser of the promissory note in suit.
The judgment below was in favor of the National Exchange Bank of Baltimore city, the present appellee, for a balance including interest, of $3,331.90 on a promissory note of the Roxbury Distilling Company for the original sum of $9,000, dated October 13, 1908, payable on demand to the appellee's order, and indorsed by the appellant and others before delivery. It is shown by the proof that this note was given as a substitute for a time note to the bank which had been executed by the same parties. At the inception of the last-mentioned note the distilling company had deposited with one of the indorsers, for their common indemnification, 18 bonds of the company of the par value each of $1,000. After the substituted demand note had been in existence for about a year, it was reduced by a payment of $5,000, and the bonds just referred to were delivered to the bank as collateral security for the remainder of the indebtedness. This occurred in November, 1909. Interest was paid on the note to December 31st of that year, after which no further payments of any kind were made until August, 1913, when a dividend of $335.95 upon the collateral bonds was paid by the receivers of the distilling company, and this was followed by another of $135.31 from the same source on the note itself in December, 1913. The defendant indorser testified that the sum paid on the note in 1909 represented the amount realized by the distilling company from a sale of $5,000 worth of whisky to the defendant, which was made in pursuance of an arrangement for such an application of the proceeds. The money required for this purchase was obtained by the defendant upon a mortgage of a portion of his property. It was through his action that the bonds held as an indemnity for the indorsers were delivered to the bank as collateral. The defendant states that these results were accomplished by him under an agreement with Mr. Waldo Newcomer, president of the National Exchange Bank, that in consideration of this service the defendant should be released from further liability on his indorsement. This testimony is met by Mr. Newcomer's express denial that there was any such agreement; but the defendant claims the right to have the disputed question of fact submitted, under a prayer for that purpose, to the finding of the court sitting as a jury.
The theory advanced by the defendant is that the provision we have quoted from the Negotiable Instruments Act applies only to renunciations made without consideration, and that it has no reference to releases of liability under agreements which operate by way of accord and satisfaction. In view of the general policy of the statute we are unwilling to restrict its application by adopting the construction suggested. Assuming that the transaction described by the defendant, and upon which he relies, would furnish a sufficient basis for an accord and satisfaction with respect to his liability as an indorser, we are of the opinion that under the plain and comprehensive language of the act the only mode of proving the alleged release is by a renunciation in writing. Undoubtedly the word "renunciation," as used in the section quoted, appropriately describes the act of surrendering a right or claim without recompense, but it can be applied with equal propriety to the relinquishment of a demand upon an agreement supported by a consideration. It is defined as meaning: "The act of renouncing or giving up some thing possessed." Webster's International Dictionary. "The act of giving up a right." Bouvier's Law Dictionary (15th Ed.). "The legal act by which a person abandons a right acquired, but without transferring it to another." Century Dictionary. These definitions are practically the same as those given in the same authorities for the word "release," as follows: "A giving up or relinquishment as of a right or claim." Webster. "The giving up or abandoning a claim or right to the person against whom the claim exists or the right is to be exercised or enforced." Bouvier. "A surrender of a right." Century. Both the terms thus similarly defined are classed as synonyms...
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