Corporation Commission v. . Wilkinson

Adams, J. The note was due 7 March, 1927; the bank suspended payment 9 February, 1927. At the latter date G. L. Wilkinson, after paying another note he owed the bank left on deposit $64.30, for which he was *347 given a certificate. Tbe Corporation. Commission appointed, several successive liquidating agents, tbe plaintiff A. Gr. Small taking charge of tbe business 16 September, 1927. Sometime after tbis date Small and Gr. L. Wilkinson bad an agreement whereby Wilkinson surrendered bis certificate and Small credited tbe note in suit with $64.30. On 7 February, 1929, J. E. Wilkinson, maker of tbe note, offered to deposit with tbe bank, or its agent, ten shares of tbe preferred stock of N. B. Josey and Company, issued to bis wife Meta Savage Wilkinson, as security for bis debt if be could “get as much time as be needed for tbe payment of tbe debt, not to run beyond 31 December, 1929.” His offer was accepted and tbe time was extended — the debt “not to be forced prior to 31 December, 1929” — and tbe ten shares of stock were turned over to tbe bank or its representative in February or early in March, 1929. Neither Gr. L. Wilkinson nor Mrs. Meta Wilkinson was present when tbis agreement was made or bad any knowledge of it. Tbe argument was addressed to tbe consideration of two questions: (1) Are tbe defendants discharged or relieved of liability by an extension of tbe time of payment granted tbe maker of tbe note? (2) As to tbe endorsers, what is tbe legal effect of tbe alleged “payment by offset”? J. E. Wilkinson signed tbe note under seal as maker, and on tbe reverse side Meta S. Wilkinson, bis wife, and George Wilkinson, bis brother, wrote their respective names before tbe note was delivered to tbe payee. Under tbe law in effect prior to tbe adoption of tbe Negotiable Instruments Act tbe parties to a negotiable instrument were permitted to prove as between themselves whether they bad affixed their signatures as joint promisors, as guarantors, or as endorsers; but under tbe present statute any person who writes bis name on such instrument otherwise than as maker, drawer, or acceptor is deemed to be an endorser, unless be clearly indicates bis intention- to be bound in some other capacity. C. S., 3044; Lilly v. Baker, 88 N. C., 151; Barden v. Hornthal, 151 N. C., 8; Wrenn v. Cotton Mills, 198 N. C., 89. Tbe defendants are accommodation endorsers. Tbis is not denied; but it is argued that according to tbe terms of tbe note tbe defendants are bound by tbe agreement of tbe liquidating agent and tbe principal that tbe payment be extended. In order to bind tbe endorsers two things are essential to such an agreement: (1) waiver of tbe defense that tbe time of payment has been extended; (2) mutual assent to a definite time when payment is to be made. In Wrenn v. Cotton Mills, supra, waiver of notice of dishonor was shown, but not a determinable future time when tbe claim was to be satisfied. In tbe present case tbe liquidating agent and tbe maker of tbe note, for value, without tbe assent of tbe *348 endorsers, extended the time of payment to 31 December, 1928. The bank did not reserve the right of recourse. In the absence of other facts this would bar recovery by the plaintiffs. An endorser, being secondarily liable, is discharged by any agreement binding upon the holder to extend the time of payment or to postpone the holder’s right to enforce the instrument unless made with the endorser’s consent, or unless the right of recourse against him is expressly reserved. C. S., 3102; Edwards v. Ins. Co., 173 N. C., 614. After a person secondarily liable has been discharged by an extension of time his liability can be revived only by contract or by estoppel. Bank v. Vashor, 160 Pac. (Kan.), 208. The appellants contend, however, that the endorsers have waived this defense — that the waiver is embodied in the note itself and is binding upon all parties as provided in C. S., 3092. Ve need not pause to enquire whether the “waiver embodied in the instrument” is merely a waiver of notice of dishonor under Article 8 of the Negotiable Instruments Law, because though the agreement named in C. S., 3102(6) must be binding, it may be express or implied, verbal or written. Bank v. Farmers Mut. Exchange, 92 S. E. (Va.), 918. The appellants say that the language of the note establishes a written agreement binding upon the defendants: “And the subscribers agree to continue and remain bound,” etc. The significance of the word “subscribe,” when used in written instruments, must often be sought in the context and attendant circumstances. To subscribe means literally to write underneath, as one’s name: sub, under; scribere, to write; or, to write below a documentary statement. Webster’s New International Dictionary; New Standard Dictionary of the English Language. Circumstances may call for a different interpretation, as in case of a subscription for stock in a corporation or the attestation of wills and the execution of deeds under our statutes. Pridgen v. Pridgen, 35 N. C., 259; Devereux v. McMahon, 108 N. C., 134; Hawley v. Upton, 102 U. S., 314, 26 L. Ed., 179. In its popular meaning the word is usually limited to a signature at the end of a printed or written instrument. James v. Patten, 55 A. D. (N. Y.), 376; Attorney-General v. Clark, 59 At. (R. I.), 395; Wild Cat Branch v. Ball, 45 Ind., 213. This Court has approved the definition with respect to the interpretation of statutes, noting a distinction between statutes requiring instruments to be signed and those requiring them to be subscribed. In reference to the first class it is not necessary that the name appear on any particular part of the writing, but as to the second class the name must be at the end of the instrument. Richards v. Lumber Co., 158 N. C., 54; Boger v. Lumber Co., 165 N. C., 557; Burriss v. Starr, ibid., 657; Peace v. Edwards, 170 N. C., 64; S. v. Abernethy, 190 N. C., 768. *349 It has been held elsewhere that a waiver in the body of a note by a drawer, who of course was the maker, applied only to the drawer and not to an endorser-, also that the words “we promise to pay” similarly placed in a note which was signed by only one maker do not include persons who signed their names as endorsers on the back of the note. Bank v. Behrens Mfg., Co., 198 N. W. (N. D.), 467; Williams v. Silvestein, decided 30 July, 1931, by the Supreme Court of California. We have examined a number of cases which are frequently cited in support of the proposition that a waiver of notice of dishonor (Art. 8, Neg. Ins. Law) is effectual against an endorser; but in the following-cases the notes sued on contained words descriptive of endorsers — such, for example, as “subscribers and endorsers,” “drawers and endorsers,” “sureties, endorsers, and guarantors,” or “makers, sureties, and endorsers”: Bank v. Johnston, 169 N. C., 526; Gillam v. Walker, 189 N. C., 189; McInturff v. Gahagan, 193 N. C., 147; Katz Finance Co. v. Levy, 241 Ill. App., 576; Owensboro Savings Bank & Trust Company’s Receiver v. Haynes, 136 S. W. (Ky.), 1004; Corley v. French, 294 S. W. (Tenn.), 513; Blucher v. Eubanks, 5 S. W. (2nd) Tex., 972; Hoover v. McCormick, 54 N. W. (Wis.), 505; Bank v. Sigstad, 65 N. W. (Ia.), 407; Bank v. Wilka, 71 N. W. (Ia.), 200; Woodward v. Lowry, 74 Ga., 148; Sohn v. Morton, 92 Ind., 170; Morrison v. Grantz, 141 S. E. (W. Va.), 394. Whether in view of section 3092 the word “subscribers” in the note before us could, in any event, be construed to include an endorser, we are not required to decide. We are dealing, not with notice of dishonor under Article 8, but with an alleged agreement to extend the time of payment as provided in section 3102; and our opinion is that the word “subscribers” cannot reasonably be interpreted as extending to the endorsers of the note. The endorsers, therefore, were not parties to the agreement by which the bank extended the time of payment for the benefit of the principal and in consequence are discharged by the express terms of section 3102. The result is that inquiry as to the legal effect of the agreed credit of $64.30 is unnecessary. Granting, without deciding, that the payment was voluntary and that thé liability of the endorsers was thereby continued for the time, we must remember that the agreement for an extension of payment was made more than a year after the credit was entered on the note. This is distinctly proved by the evidence introduced by the plaintiffs and the agreement prevents recovery although the action would not otherwise have been barred by the statute of limitations. For this reason error, if any, in the instructions relating to the fifth and sixth issues was not prejudicial. No error.