Parker v. . McDowell

*222 Ashe, J. (after stating the facts). The defendant insisted there was error in the judgment of the Court below, and to sustain his contention, relied upon the decision of the Court in the cases of Respass v. Latham, Busb., 138; Dewey v. Cochran, 4 Jones, 184, and Southerland v. Whitaker, 5 Jones, 5. But these decisions do not have any application to the case under consideration. Bespass v. Latham was an action upon a sealed instrument, brought by the assignee against the obligees. The obligees refused to receive the bond, and returned it to one of the obligors. Some eight days after its presentation and refusal, the person named obligee, was induced to sign an endorsement “ without recourse” to the assignee, who brought the action against the obligors, and it was held that the bond was void for want of delivery. The action in Dewey v. Cochran, was upon a promis note, payable to “Thomas W. Dewey, cashier, or order, negotiable and payable at the branch of the Bank of the State of North Carolina at Charlotte,” and signed by Caldwell & Pluggins, as principals, and by R. T. McIntyre and W. B. Cochran, as sureties. The note was presented at the bank, and the holder was informed by the President of the bank, that the bank would not discount it. The note was thereafter transferred by one Huggins, a partner of the firm of Caldwell & Huggins, to Farrior &. Bros., of Charleston, South Carolina, in payment of a debt due them by Caldwell & Huggins. The action was brought in the name of Thomas W. Dewey. There was a special verdict, finding the foregoing facts, and the Court rendered judgment of nonsuit against the plaintiff, on the ground that Dewey had never accepted the note; that his assent to it was essential to the validity of the contract; that he had not the legal title to the note, and therefore, the action could not be maintained in his name, and on the further ground, that by making the note payable to the Cashier of the bank, and negotiable at the bank, it showed upon its face that the undertaking of the’ sureties was, that it should be discounted there and nowhere else. *223 In the case of Southerland v. Whitaker, the note upon which the action was brought, was in its terms identical with the note in Dewey v. Cochran. It was payable to William Reston, Cashier. It was never presented to the bank to be discounted, and when past due W. Reston was requested by one Kelly to endorse it in blank, “without recourse,” which he did, and it was never •delivered to him or accepted by him, under any contract or agreement with the makers or either of them, and that he had no title or interest in the note, and nothing was paid him for it by Kelly, who thereafter endorsed it without consideration to the plaintiff, to enable him to bring the action in Duplin county. It was held that the note was void, because it was manifest upon its face, being payable to the Cashier, that it was the understanding of the parties that it should be discounted at one of those banks designated in the note, and for the further reason that there was no proof of a consideration. But PeaesoN,-Jltc/p’e, who delivered the opinion in'that case, proceeded to say: “There is a distinction between that case, and when the note is payable to the seller.” The intent that it is to become a note, and have validity from the time it is written, and its being made afterwards negotiable and payable at bank, is a collateral circumstance, introduced for the accommodation of the seller, and not intended to affect the validity of the note. The note upon which this action was brought, was what is called an accommodation note, and is in the following words and figures: “Sixty days after date, I promise to pay to A. Moore, or order, two hundred and five dollars, for value received, negotiable and payable at the People’s National Bank of Fayetteville, N. C., with interest after maturity at the rate of eight per cent, per annum until paid, for money loaned. (Signed) N. A. StedmaN, Jr.” On the back of the note were written the names of John A. McDowell and A. Moore. *224 The case of Ray v. Banks, 6 Jones, 118, was similar to this, . and the note upon which the action was founded was so far identical in its terms with that in this ease, that we think the adjudication there is decisive of this case. The note there was made by James Banks, payable to William S. Mullins, ninety days after date, negotiable at the Branch Bank of Cape Eear, at Fayetteville, or at the Bank of Fayette-ville, at the option of the holder, and endorsed in blank by W. S. Mullins and McKethan. Banks, at the date of the note, being indebted to Ferdinand McLeod in an amount agreed to be that of the note, transferred the note to him in payment of the-indebtedness, and McLeod endorsed to the plaintiff for value. The note was never discounted nor offered for discount at the bank. It was held by this Court, that the plaintiff, the endorsee of McLeod, could recover against the maker of the note/or any of the endorsers thereon, though it had never been discounted at bank, nor offered for such a purpose. Judge Ruppest, delivering the opinion of the Court, distinguished the case from that of Dewey v. Cochran and Southerland v. Whitaker. He said those eases were much misconstrued in applying them. “ They were not intended to affect, and do not affect, notes and endorsements founded on actual transactions for value; as, for example, notes given upon sales, or intended to raise money in the general market. The decision applied to the cases before the Court, which were of notes made to enable the principal to borrow money from a bank, and with that purpose sufficiently indicated, as it was thought, on the face of the papers themselves.” The notes in these cases were payable to the cashiers of the banks; in the case of Ray v. Banks it was payable to Mullins. Hence the distinction. The opinion of the learned Judge is fully sustained by Daniel in his work on Negotiable Instruments, vol. 1, §792, where it is said : “ It is now well settled, that when a note is endorsed for the accommodation of the maker, to be discounted at a particular bank, it is no fraudulent misappropriation of the note if *225 it is discounted at another bank, or used in the payment of a debt or otherwise for the credit of the maker.” There is no error. The judgment of the Superior Court is affirmed. No error. Affirmed.