Costin v. Burton-Lingo Co.

KEY, Associate Justice. Appellee, a private corporation, brought this suit against appellant and recovered judgment against him as endorser upon a promissory note executed by J. H. and J. J. Myles. The original makers of the note were not sued, the plaintiff alleging that they were notoriously insolvent and that their residences were unknown. The defendant answered by a general and special exception and a general denial. The court below overruled the exceptions and upon trial without a jury rendered judgment for the plaintiff and the defendant has appealed. The first assignment complains of the action of the court in overruling the exception to the plaintiff’s petition. The contention is that the exceptions should have been sustained for the reason that, while the plaintiff alleged the insolvency of the makers of the note at the time of the institution of the suit, the petition did not allege that they were insolvent at the time of the maturity of the note, and the suit not having been brought until after the lapse of two terms of court the defendant, who was merely an endorser, was not shown to be liable. If liability of an endorser could be fixed only by bringing suit Avitliin the time prescribed by statute for fixing liability the contention urged might be correct. But such liability can be fixed by a protest as well as by suit, and upon the face of the note and by its Avritten terms, protest and notice thereof are waived. We are of opinion that the Avaiver referred to secured to the plaintiff the right that would have been secured by a timely protest, and therefore it Avas not necessary to show the insolvency of the makers to fix the liability of the defendant. (Leeds v. Hamilton Paint & Glass Co., 35 S. W., 77.) The court found that the residences of both makers of the note were unknown and that both were insolvent. The evidence sustains that finding except as to the insolvency of J. J. Myles. Proof of either insolvency or unknown residence is sufficient excuse for not suing the maker of negotiable paper. Hence, we overrule the other assignment of error. Judgment affirmed.