Wilkie v. Chandon

The opinion1 of the court was delivered by Hoyt, J. Defendant was sued as an indorser of a certain promissory note. Judgment was rendered against him, to reverse which he has brought the case here. Several errors are assigned as cause for reversal, but of these it is only necessary that we should examine two, as all the others depend upon, and must be controlled by; the decision of those two. 1st. That the court erred in overruling appellant’s motion for non-suit. 2d. That the court erred in refusing to submit certain questions, requiring a special finding of fact, to the jury. Plaintiff, to maintain his action, introduced proof tending to show that the note in question was given in settlement of an account due him from one John Wilkie, a brother of defendant, and that said note was signed by said John Wilkie as maker, and was payable to the defendant, who, [357] before its deliyeiy to plaintiff, indorsed it, first causing to be written above his name as such indorser the words: “ I hereby waive protest on withinthat plaintiff received the note, and the promised payment of $35.00 in cash, as a settlement of his said account against said John Wilkie, and that said note had not been paid. There was proof upon some other points, but the statement thereof is not necessary for the discussion of the questions raised on this appeal. When plaintiff rested, defendant moved the court for a judgment of nonsuit, and urgeshere two reasons why such motion should have been granted. 1st. That the proof failed to show any consideration for the note sufficient to charge this defendant. 2d. That no demand of payment upon the maker had been proved. That the settlement and satisfaction of a pre-existent debt is sufficient consideration for a note given in such settlement, is too wrell settled to require argument at this day, and we do not understand that appellant contends to the contrary so far as the original debtor, as the maker of the note, is concerned. He does, however, contend that asno consideration actually passed from the original creditor, that is, that he parted with nothing of value at the time of the transaction, there was no such consideration as would sustain his contract as indorser, as he was a stranger to the original indebtedness. We think, however, that by consenting to become a party to the note, and an in-dorser thereof before delivery, he identified himself with the maker and became a party to the consideration, and that as there was a good consideration for the making, there was also, under the circumstances disclosed by this case, a good consideration for the indorsement. Where the language of the waiver, as in this'case, was only of the protest, it would be a question of some importance to determine whether ornotin the absence of a statute upon the subject it could by intendment be so extended as to be a waiver of demand of the maker. But that case is not now [358] presented, as this note was executed in California where there is legislation upon this subject. Section 3160 of the Civil Code of California is as follows: “A waiver of protest on any negotiable instrument, other than a foreign bill of exchange, waives presentment and notice;” and aided by this, the waiver on the note in question was a waiver of demand, and therefore it was not necessary to prove one. The defendant asked the court to submit two questions to the jury. The first was as follows, to wit: “ Did the plaintiff in this action ever present the note to the maker thereof or demand payment of the same from the maker, John Wilkie, before the commencement of this suit?” We have already seen that there was absolutely no proof as to demand, and that under the law of the case no demand was necessary, and hence it would have been worse than idle to have submitted such question, and the court did only its duty in refusing so to do. The second question was: “ Did the defendant, David Wilkie, sign the note as maker, surety or indorser?” The court properly refused to submit this question for the reason that the undisputed proofs show that he signed the same as indorser, as not only the plaintiff’s proofs showed this to be the fact, but the same was testified to by defendant himself. Besides, the question was not in such form that the court could properly require the jury to answer it. The j ury from it might feel called upon to answer in which of said capacities he signed, and equally as well might feel called upon to answer “yes” or “no” as to the entire question. Questions submitted to a jury for a special finding should be carefully drawn, and call for a direct answer, and should be such that all minds would understand them alike; and if not so framed, the court should refuse to submit them. On the whole record we see no error, and the judgment must be affirmed, with costs; and it is so ordered. Scott and Stiles, JJ., concur. Anders, O. J., and Dunbar, J., not sitting.