Love v. Wall, 8 N.C. 313, 1 Hawks 313 (1821)

June 1821 · Supreme Court of North Carolina

8 N.C. 313, 1 Hawks 313

Love v. Wall.

From Anson.

If two individuals indorse a note in' virtue of a mutual understanding with each other, to lend their names for the accommodation of the maker, evidence may be left to a Jury of such mutual understanding or agreement.,

This was an action brought to recover the" amount of a promissory note made by Edward Gf. Williams, negotiable and payable at the Bank of Cape-Fear, in Fay-etteville. The note was made payable to and indorsed by the Defendant, and afterwards by the Plaintiff 5 both these indorsements were made for the accommodation of the maker, who procured the note to be discounted at Bank, and applied the proceeds to his own use. When, the note arrived at maturity, it, was regularly demanded at the Bank, protested, and due notice given to the Defendant and Plaintiff. The Plaintiff being sued by the Bank, paid the amount of the note, and brought this action against the Defendant, as first indorser. On the trial below, the Defendant contended that both the Plaintiff and himself were to be viewed as joint securities of Williams, having both indorsed for his accommodation, and that tbe Plaintiff was therefore only entitled to recover one-half of the note. The Court instructed the Jury, that there appearing no evidence of any special agreement between the parties, this case was to be regulated by the Law Merchant; and that the Defendant, being the first indorser, was liable to any subsequent indorser who was a bona fide holder of it, or who had been corn» pelled to pay the note to a bona fide holder; whereupon the Jury returned a verdict for the full amount of the note. A new trial was moved for, on the ground'of misdirection of the Court, which was refused, and from the judgment rendered pursuant to the verdict, Defendant appealed. •' :

Gaston, for PlaintiiF.

When men attach their signatures to instruments, it must be considered they do so with all those liabilities imposed by law.

An indorsee has a right of action against all parties prior to himself—(Chitty on Bills 155, 357—4 Mass. R. 258—3 Day 311.) The only circumstance which can be supposed to take this case out of the general rule, is, that the note was made arid indorsed for the accommodation of the maker. But that circumstance cannot vary the general rule as to the liability of indorsers—(Chitty 160—7 Johns. 361.) It is not necessary in this case, that the consideration should be beneficial to the Defendant, for a consideration arising from the payment of the note, extends to all the parties upon it—(5 Cranch 49, 142.)

Henderson, Judge,

delivered the opinion of the Court :

It does not distinctly appear whether the Plaintiff indorsed the note, in virtue of a mutual understanding with the Defendant, to become bound or lend their names for the accommodation of Williams; or whether after the note was made by Williams, and indorsed by the Defendant for Williams’s accommodation, the Plaintiff, without any previous agreement with the Defendant to that effect, to give the note additional credit for the accommodation of Williams, also indorsed it. In the case first put, I think the evidence was to be left to a Jury of a mutual agreement to stand as joint securities, and there is certainly nothing in the form of the writing which forbids -the Defendant from shewing the special agreement, and on what consideration the parties respectively signed their names, or agreed to become bound. I therefore think the presiding Judge was wrong in requiring a special agreement of mutual liability to be proven iti words. The Jury should have been instructed, that in law a mutual liability arose from a mutual agreement to become bound for accommodation, unexplained or uncontradicted by other circumstances. M the case be as put in the latter part of the foregoing statement, authorities may be found to shew that a joint liability does not arise, which is as far as the cases relied on by the Plaintiff’s counsel go—(Chitty on Bills, 155, 357, 160—7 Johns. R. 361—5 Cranch 49, 142)—from which I am strongly inclined to believe, that the foregoing opinion is supported by authority, at least is not contradicted. Wc wore without the aid of an argument for the Defendant, and although strongly inclined for the Plaintiff, if the case he as last stated, do not wish to express an opinion on it. But as from the statement it is doubtful how the facts are, and if as first stated, we think the law has not been administered, the judgment of the Court is, that there must be a new trial.