Armstrong v. Slick

SULLIVAN, J.' This action was brought to recover upon four bills of exchange and two promissory notes for a sum aggregating approximately $54,000, including interest and attorneys’ fees. Said bills of exchange were dated February 20, 1906, and were executed by the appellants to the order of themselves and drawn on the Glenn’s Ferry Land & Irrigation Co., and were indorsed on that date by the appellants under the name of Slick Bros., as follows, to wit: “For value received, we hereby guarantee payment of the within note, waiving demand of payment, protest and notice of nonpayment. (Signed) “SLICK BEOS., “By W. B. SLICK.” On the same day said bills were accepted by the Glenn’s Ferry Land & Irrigation Co. by the following indorsement upon their face: “Accepted this 20th day of February, 1906, payable at the JBannock National Bank, Pocatello, Idaho. (Signed) “GLENN’S FERRY LAND & IRRIGATION CO., “By ERNEST PIERSON, Pres., “By E. L. RIGG, Secy.” [211] Promissory notes were executed by the Glenn’s Ferry Land & Irrigation Co., payable to the order of Slick Bros., and were indorsed by Slick Bros, in the same manner as were the bills of exchange. One of said notes bore date of July 19th and one July 20th, 1905, the indorsement thereon bearing date of July 20th. The complaint states six causes of action, four on bills of exchange and two on said promissory notes. At the time of filing the complaint, the plaintiff secured several writs of attachment directed to the sheriff of several different counties in Idaho and against all of the defendants jointly, the plaintiff averring in the affidavit for attachment that the causes of action set forth in the complaint were founded upon certain express contracts for the direct payment of money. The property of the defendants, Slick Bros., was attached in several different counties. Thereafter Slick Bros, moved to vacate and discharge said writs of attachment, the principal ground of which was that the alleged negotiable instruments set forth in the complaint were not, as to the liability of the. appellants, contracts express or implied for the direct payment of money, but that, on the contrary, the liability for the payment thereof was wholly contingent, indirect, secondary and conditional to the liability of their codefendant, the Glenn’s Ferry Land & Irrigation Co. The irrigation company did not appear in the action and did not join in the motion to dissolve the attachment, and has not joined in this appeal. After a hearing, the court denied the motion to dissolve the attachments and this appeal is from that order. The contention of appellants is that their liability upon the instruments sued upon is conditional, contingent, indirect and collateral, and therefore as to them the said contracts are not for the “direct payment of money” within the meaning of the phrase, “for the direct payment of money,” as used in see. 4302, Rev. Stat., which section has reference to the issuance of writs of attachment. There is nothing in that contention, as the contract of an indorser or guarantor of a bill of exchange or promissory note is a contract for the direct payment of money. [212] There is no distinction between the contract of a maker of a promissory note and the acceptor of a bill of exchange as to their being contracts for the direct payment of money. After the obligation becomes due, and suit is brought to collect the same, attachment may issue under the laws of this state against the indorser and guarantor of such paper the same as against the acceptor or maker. (Elbring v. Mullen, 4 Ida. 199, 38 Pac. 404.) The order of the trial judge refusing to dissolve the attachment must therefore be affirmed, and it is so ordered, with costs in favor of the respondent. Ailshie, C. J., and Stewart, J., concur.