Fourth National Bank v. Wilson

IIoke, J., after stating the case: We have given this case our most careful consideration and are of opinion that no reversible error has been shown. In Barden v. Hornthal, 151 N. C., pp. 8-10, speaking to the law as it existed prior to the time when the negotiable instrument act became effective, 8 March, 1899 (see Revisal 1905, sec. 2345), the Court said: “Viewed in that aspect, our decisions are to the effect that when a third person writes his name on the back of a negotiable instrument before delivery to the payee, and with a view to give additional credit to the maker, it is open to the original parties, and as between themselves, to show the intent and exact nature of the obligation assumed, whether as joint promissor and guarantor or as first and second indorser, etc.;' and in the absence of such qualifying testimony the law will presume that such person signed his name as comaker, and in any event as surety, that being the relationship of the defendant alleged in the complaint.” Citing Lilly v. Baker, 88 N. C., 151; Tredwell v. Blount, 86 N. C., 33; Hoffman v. Moore, 82 N. C., 313; Baker v. Robinson, 63 N. C., 191;. Good v. Martin, 95 U. S., 90. The statute in question evidently was intended to make some change in the former law in the respect suggested, Perry v. Taylor Bros., 148 N. C., 362, and, in sections 2212 and 2213, it is provided as follows: “Sec. 2212. A person placing his signature upon an instrument otherwise than as maker, drawer, or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity. “Sec. 2213. Where a person not otherwise a party to an instrument places thereon his signature in blank before delivery, he is liable as in-dorser, in accordance with the following rules: (1) if the instrument is payable to the order of a third person he is liable to the payee and to all subsequent parties; (2) if the instrument is payable to the order of the maker or drawer or is payable to bearer, he is liable to all parties subsequent to the maker or drawer; (3) if he signs for the aeeommo- *560 dation of tbe payee, be is liable to all parties subsequent to tbe payee.” . On tbe facts as presented it would seem to be tbe purpose of tbe statute to fix tbe status of tbis defendant as indorser and to exclude parol evidence to tbe contrary in tbis and all eases coming under tbe statutory provision, “unless be clearly indicates by appropriate words bis intention to be bound in some other capacity.” There is conflict of authority,however, as to tbe effect and extent of tbis statutory change (see Daniel on Negotiable Instruments (6 Ed.), pp. 806-7, annotations by T. H. Calvert, more particularly notes 32 and 33), and we are not called on to determine tbe question, in tbis case, for tbe reason that tbe jury, under a correct charge, has found that due and proper notice has been given, and defendant is liable, therefore, whether indorser or surety. Tbe jury having found that defendant was surety, tbe verdict on tbis, tbe next issue, does not in itself fix tbe time and character of tbe notice given, but it is well understood that a verdict may, in proper instances, be given significance by reference to tbe pleadings, evidence, and the charge of tbe Court (S. v. Murphy, 157 N. C., 615; Richardson v. Edwards; 156 N. C., 590), and, on examination of tbe record, it appears that tbe charge of bis Honor on tbis issue is in exact accord with the statutory requirement as to notice of dishonor for nonacceptance or nonpayment of negotiable instruments. Revisal, sec. 2254. There is pertinent evidence tending to show that tbe proper notices were mailed to defendant’s address, and tbe custom of tbe bank as to tbe character and time of sending their notices was clearly competent on tbis issue as to notice. Vaughn v. R. R., 63 N. C., 11; Asher v. DeRosset, 53 N, C., 240; Union Banlc v. Stowe, 50 Me., 595; Matthews v. O'Neil, 94 Mo., 520; "Wigruore on Evidence,, sec. 93; 1 Greenleaf (16 Ed.), 14 J. Tbe exceptions to tbe charge of tbe court on tbe fourth and fifth issues, tbe fourth as to suretyship and fifth as to notice, to tbe effect that tbe same, in certain aspects, amounted to an expression of opinion by tbe trial judge adverse to defendant, may not be sustained. As we have seen, tbe verdict on tbe fourth issue has become immaterial, since tbe jury, in response to tbe fifth issue, has established notice sufficient to fix and bold defendant as indorser; and there is nothing to show that tbe error on tbe fourth issue, even if it existed, had any effect or bearing on tbe fifth. As to bis Honor’s charge on tbe latter issue, tbe portion objected to is clearly susceptible of tbe interpretation that bis Honor was stating tbe contention of tbe plaintiff, and should not, in our opinion, be held for reversible error. On tbe record, as stated, we find no sufficient reason for disturbing tbe results of tbe trial, and the judgment in favor of plaintiff must be affirmed. No error.