Siebeneck v. Anchor Savings Bank

Mr. Justice Sterrett delivered the opinion of the court, January 4th, 1886. It must be conceded that, as indorser of the note in suit, plaintiff in error is liable for the balance due thereon, unless lie was released therefrom by agreement of the -bank with the makers for a definite extension of- time, first for sixty days and then for the further period of ninety days. As to the fact of such agreement there can be no question. ‘ It is conclusively shown by the indorsements on the note itself, and [192] also by tbe oral testimony. Tbe note for $3,800, made by A. A. Jackson & Co. and indorsed by plaintiff in error, matured February 16th, 1884. On that day a waiver of protest, signed by plaintiff in error as indorser, was delivered to the cashier, to whom the makers then paid $544, which was subsequently credited by indorsing on the note, in the handwriting of the cashier, as follows: “ Received on account of the within note five hundred dollars, and interest paid on the balance, thirty-three hundred dollars, for sixty da}^, this 26th day of February, 1884.” On April 18th, when the sixty days’ extension expired, they paid the further sum of $852.22, which is also acknowledged b}^ indorsement on the note, in same handwriting, as follows: “Received on account eight hundred dollars ; also interest for ninety days paid to this date.” The undisputed testimony is that the sums specified in these indorsements were on account of principal, and that $44 interest was paid for the first and $52.22 for the second extension, and were so applied with the knowledge and consent of the board of directors. If this was done on either occasion without the assent of plaintiff in error he was undoubtedly released from liability as indorser, and the burden of showing such assent was on the bank. In affirming defendant’s second, third and fourth points, the learned president of the Common Pleas recognized the correctness of this proposition, but he appears to have thought there was testimony from which the jury might infer the indorser’s assent to both extensions. In this we think there was error. There is nothing in the testimony of plaintiff in error, nor in that of the cashier, from which the assent of the former to a definite extension of time to the makers of the note could reasonably be inferred. The only testimony on which plaintiff below appears to have relied is that of its president. He testified, in substance, that shortly after maturity of the note plaintiff in error called on him, as an old friend, and requested that the bank should carry the dishonored note, to which he replied, “that we would not renew the note for him, or anybody else; would not do it; would not take the risk of a renewal, but that possibly the bank would be able to carry it for a few days, and if it was possible to carry it a week or ten days I would do the best I could, with the understanding that it was to be reduced as fast as they could reduce it.” Again he says, “ I agreed to no definite extension, but only a friendly promise to oblige the parties.” On cross-examination he testified: “I told him very distinctly we would not renew it for him, because, as I say, we had obliged him more than I thought he was entitled to.”.....“After some little conversation in which I told him the directors wanted the [193] money, although we were not hard up, and that possibly we could oblige them a little while, and told him I would go and see the cashier and directors, if necessary, and prevent them from being harassed about the note ; but, with this condition, that we would not make any positive or definite extension of time ; simply indulge them as long as we could, the interest to be paid up.” There is nothing in the foregoing, nor in any other portion of the testimony, to warrant any other inference than that the president of the bank would use his influence to secure for the makers of the note a mere forbearance or temporary indulgence, on condition that they would reduce the note as fast as they could, but that in no event would a definite extension of time be granted. There was nothing said or done during the interview with plaintiff in error to even suggest that anything more than a temporary indulgence would be extended to the makers. Indeed he was distinctly informed that the note would not be renewed, nor “ any positive or definite extension of time ” be granted. We find nothing in the testimony that can be regarded as sufficient to rebut the at least prima fade defence made out by the indorsements on the note. The import of these indorsements cannot be misunderstood. They clearly show that two definite extensions of time were successively granted to the makers, for which they paid, in advance, more than the legal rate of interest. Under that evidence neither the bank nor the indorser, if he had taken up the note, could have maintained an action thereon against the makers until the expiration of the respective periods for which the time of payment was extended. It was unnecessary for the court to charge as complained of in the fourth specification. The remarks of the learned judge were calculated to unduly prejudice the plaintiff's case. The first, second and fifth specifications of error are sustained. Judgment reversed.