Furth v. Baxter

The opinion of the court was delivered by Anders, J. On February 10, 1894, a promissory note was executed in favor of the Guarantee Loan & Trust Company in the sum of $600, signed by 30. FT. Baxter and Andrew Hemrich, and indorsed on the back by defendant Sheehan.' The note contained a waiver of presentment for payment, protest, and notice of protest for non-payment. The note was subsequently, to-wit, on May 25, 1896, assigned by the Guarantee Loan & Trust Company to plaintiff herein. Suit was begun on said note by plaintiff. Defendant Baxter defaulted. Defendant Hemrich filed a cross-complaint, alleging that he had signed the note with Baxter at the solicitation and for the sole benefit of defendant Sheehan, and asked that he be treated as [609] an accommodation maker, and that any decree in favor of plaintiff assignee should require exhaustion of the estate of defendant Sheehan prior to any execution against him (Hemrich). Defendant Sheehan, answering, alleged that he was indorser of said note solely for the purpose of identification, and had no other responsibility; and he denied all of the allegations of the cross-complaint, and asked judgment of dismissal. He alleged further that, treating him as an ordinary indorser, he received no notice of non-payment of- the note, such as an indorser would be entitled to, the waiver contained in the face of the note going only to presentment for payment, protest, and notice of protest for non-payment. Hpon issues thus joined, trial was had before the court, a jury being expressly waived. The court found, in substance, that Baxter, Hem-rich, and Sheehan were makers of the note so far as the plaintiff was concerned. It found further that no part thereof had been paid; that, when it was delivered to defendant Sheehan, defendant Baxter was indebted to Sheehan in a sum.greater than $600, and that the note was treated as a payment on said indebtedness, and that it was understood that said note would be discounted by defendant Sheehan. It found further that when the note was signed by Baxter and Hemrich, defendants, it was not the agreement between them and defendant Sheehan that Hemrich should be liable to the payee of the note only as surety for Sheehan. Hpon these findings judgment was given against these defendants, and each of them, jointly and severally, for the full sum prayed in the complaint. Heinrich appeals, assigning as error that the court should have found that he signed said note as surety for Sheehan, and that the property of the latter must be exhausted before recourse could be had against him. Sheehan appeals, assigning as error that the court should have [610] •found that he was an indorser for identification only, and was not liable as a maker of the note at all, and that he should have received notice of non-payment. There is a very considerable conflict in the testimony. It appears to be conceded by the respective counsel that the findings by the judge, a jury being waived, are equivalent to a verdict by a jury. Where a jury finds a verdict on the facts, this court will only weigh the evidence and testimony so far as to determine if there is any substantial testimony to support the verdict. But this rule is not applicable to the extent admitted by counsel in cases tried by the court without a jury, where exceptions to the findings and conclusions have been duly taken and the facts have been properly brought to this court by a certified bill of exceptions or statement of facts. In such cases this court will examine the facts de novo and. determine the case by the record. Bal. Code, § 6520. The evidence on the part of defendant Hemrich tends to show that Hemrich signed the note at the request and for the sole benefit of defendant Sheehan, and that Sheehan indorsed the note as maker, and not solely for identification. The evidence on the part of defendant Sheehan tends to show that the note was made by Baxter and Hemrich as a payment on a debt due from Baxter to Sheehan, and that, at the request of the manager of the bank, the Guarantee Loan & Trust Company, he indorsed said note, and not as surety, but for purposes of identification. Hpon the evidence we are not disposed to disturb the findings of the court on the .questions of fact, as we are not satisfied that it erred in that regard. Defendant Sheehan contends that he was entitled to' notice of non-payment of the note. The finding’ of the lower court that Sheehan indorsed the note as a maker and principal disposes of this question. There yvas no need [611] of notice of non-payment as presentment for payment was waived. Various errors iu rulings of the court as to introduction of testimony are assigned by defendant Sheehan, hut we are not convinced that he was prejudiced thereby, and the judgment is therefore affirmed. Reavis, C. J., and Dulleeton, J., concur. Dunbar, J., concurs iu the result.