Hagerthy v. Phillips

Peters, C. J. The plaintiff having paid a note on which he was an indorser with two others, sues the defendant, another indorser, for contribution, claiming that the three indorsers, as between themselves, were, by parol understanding amounting to agreement, joint indorsers holden alike. The note, running from the firm of Mason & Cushman, to the order of II. B. Mason, a member of the firm, stood indorsed in blank, in the following order of names: H. B. Mason, A. Gf. Hagorthy, George A. Phillips, H. B. Phillips (defendant). By the reading of the note all previous indorsers would be liable to the defendant thereon, and not he to them. The plaintiff, however, contends that the apparent phase of liability is changed by the facts. While oral evidence is admissible to prove the contention of the plaintiff, it should be clear and satisfactory, inasmuch as there is easily a temptation to attempt to pervert the truth in such a matter, and the note is itself strong evidence that it represents the contract correctly. The burden of proof lies heavily upon the plaintiff. The note in question was undoubtedly the renewal of a [338] previous note, with, the same signers and indorsers and made on the same terms and conditions. All facts touching the first note were, therefore, admissible in the controversy over the second, the two notes really constituting but one transaction. As to the first note Mason testified that his firm needed money; that he conceived the idea of raising it on a note to be indorsed by his friends, having in mind the three persons whose names were afterwards obtained; that he saw these persons separately, and asked each if he would indorse a two thousand dollar note for him if the two others would, and all consented to do so ; that nothing was said by him or them in relation to the order of indorsement; that he afterwards obtained the indorsements, calling upon the parties just as he happened to find them, having no design as to who should sign first or last; and that all that was said touching the manner of signing was an assurance to the first signers that the note should not be used until signed by all. Hagerthy and George A. Phillips corroborate this statement, testifying that each of them promised to indorse if the other two would; that the note was not to be used until the three indorsed it; that nothing was said about the order of indorsement; and that no design was entertained by them excepting that the note should have the triple indorsement to complete the transaction. The defendant testifies differently,'not asserting that it was expressly stated that he was to indorse the note only upon the liability of .a last indorser, but claiming as much. He seems to have preferred to sign last on the second note, presumably, lest the note would be used without the other signatures. The plaintiff brought out considerable testimony in rebuttal of the defendant’s, which had a very strong tendency to show that some of defendant’s material statements were mistakes. There is much evidence on the question of renewal that is important in itself, but not necessary to be quoted in an examination more especially of the legal features of the case. It may be added, however, that the evidence alluded to hardly strengthens or weakens that more especially applicable to the history of the first note. [339] The jury in finding for the plaintiff, have declared that the indorsers assumed a joint liability, and that any loss sustained should be apportioned between them. Does the evidence justify the conclusion? Not a word was spoken by one indorser to another during negotiation. The facts wore communicated through Mason. Each promised to sign if others would. If the act done was the act promised to be done, the order of signing was immaterial, because it was not a qualification of the promise. Each indorser made precisely the1 same promise. Either was as much entitled to sign last as the-other. The first and second signers required assurance that the third would sign, a useless formality if their risk was not lessened thereby. They understood that the indorsers were to bo holden alike, basing their conclusion on precisely the same facts that were presented to the defendant to induce him to sign. The’ request of Mason was that the defendant would indorse for him,, not for others. The idea was to divide the risk among his. friends. The defendant’s promise was not to indorse last, but to indorse. He was not to do an act alone, — the three were to do the act. The three did it, sharing obligation and risk alike. If the defendant be let out, the result would be that he did not assist his friend. Others furnished the assistance, who were sufficiently responsible to make the note good without defendant’s name. We are constrained to say we do not feel at liberty to set the verdict aside. The exceptions become immaterial. Motion and exceptions overruled. Libbet, Emery, Foster, Haskell and Whiteiiouse, JJ., concurred.