Meyers Co. v. Battle

BeowN, J. This action is brought to recover of tbe defendant as indorser on two notes executed by tbe Southern Trading Stamp Company by J. T. J. Battle, payable at tbe Commercial National Bank, and indorsed by said Battle by writing bis-name across tbe back. Tbe plaintiff undertook to prove by parol evidence that defendant signed as an original promisor and not as an indorser. We suppose by tbe term “original promisor” is meant that defendant signed either as principal or surety, so as to dispense with notice of nonpayment as well as presentation in order to charge him. We think bis Honor erred in admitting such evidence. Tbe statute (Rev., 2212, 2213) declares that a person placing bis signature upon an instrument, otherwise than a maker, drawer, or acceptor, is deemed to be an indorser, unless be clearly indicates by appropriate words bis intention to be bound in some other capacity. It is so held in Perry v. Taylor, 148 N. C., 362, and Houser v. Fayssoux, 168 N. C., 1. There is nothing in or on tbe notes sued on which indicates that tbe defendant intended to be charged other than as indorser. Of course, this *170 does not prevent an indorser from showing that bis indorsement was an accommodation indorsement or from showing the relation of indorsers as between themselves. His Honor erred, however, in sustaining the motion to nonsuit, as well as in instructing the jury to answer the second issue “No.” There is abundant evidence that the notes were presented for payment to the maker’s office and evidence from which it may be inferred that they were presented at the Commercial National Bank. There is evidence that the maker was utterly insolvent when the notes fell due and had no funds at the bank with which to pay the notes. The defendant was treasurer of the company and is, of course, charged with knowledge of that fact. Presentment and demand at the specified bank are necessary in order to charge a drawer or indorser in the absence of some good and sufficient reason for failing to make presentment there. One of those reasons is that the maker had no funds at the bank to1 meet the obligation. If the maker of a note, payable at a bank, has no funds in the bank when it falls due, demand of payment there is unnecessary. Sherer v. Bank, 33 Pa. St., 134; 7 Cyc., 988, notes. The judgment of nonsuit is set aside. New trial.