Johnson v. Tully

BARNES, J. This was an action brought by Johnson against L. Zeekendorf & Co., upon a' promissory note made by Tully, Ochoa & Co., and purporting to be indorsed by L. Zeekendorf & Co. The note reads as follows: “$2,800. Tucson, A. T., September 17, 1881. “Three months after date we promise to pay, to the order of L. Zeckendorf & Co., twenty-eight hundred dollars, at two per cent, interest per month, value received. [Signed] “Tully, Ochoa & Co. Indorsed: “L. Zeckendorf & Co. After the indorsement of L. Zeckendorf & Co., and upon the back of the note, these words were written: “~We hereby waive protest. “Tucson, A. T., December 17,1881. L. Zeckendorf & Co. “J. WlTTLESHOEFER. ” It appears from the evidence in this case that the defendants, Tully, Ochoa & Co. and L. Zeckendoi’f & Co., were separate mercantile houses, doing business at Tucson; that the former were indebted to the latter, who were pressing for a reduction of the balance due. The plaintiff had made known to a broker by the name of Fried that he had $2,800 to loan. Zeckendorf & Co. went to the broker, and told him Tully, Ochoa & Co. were indebted to them, and that they were trying to get payment. Fried said he had a customer for whom he would loan $2,800, with Zeckendorf & Co. ’s indorsement. Tully, Ochoa & Co. also asked him if he could get them a loan. He said he could with Zeekendorf & Co.’s indorsement. The note was handed to him, and plaintiff handed him the money, and he delivered the note to plaintiff. Zeckendorf & Co. paid him $42, one-half of 1 per cent, for 90 days’ brokerage, for negotiating this loan. The money went to Zeckendorf & Co., and on that day Tully, Ochoa & Co. were credited $2,800 on the books of Zeekendorf & Co. The plaintiff left the note in the safe of Mr. Etchells for safe [218] keeping. When the note was due, viz., December 17th, EtcheUs took the note to Zeckendorf & Co. ’s place of business, and handed it to the person in charge of the main office. The person to whom it was handed directed him to Mr. Wittleshoefer, who was the book-keeper. The latter took the note, and wrote the indorsement of December 17th. At that time the members of the firm of Zeckendorf & Co. were absent, as well as Strauss, the general financial manager; and Wittleshoefer was left in charge of the business. The court below found the above facts, substantially, and, as a matter of law, concluded that Zeckendorf & Co. was a joint maker of the note, and so liable, without notice of nonpayment by Tully, Ochoa & Co. The court also found that Wittleshoefer was an agent authorized to waive protest, and bind the firm. The appellants seek to reverse this case for errors in concluding that Zeckendorf & Co. were joint makers, and not indorsers, and that Wittleshoefer was authorized to waive protest. If Zeckendorf & Co. are joint makers, no notice and protest was necessary; but if they are indorsers, notice, demand, and protest were necessary and it then becomes important to inquire whether notice, demand, and protest were waived. Upon its face, this is no other than a contract of indorsement. Tully, Ochoa & Co. are the makers; Zeckendorf & Co. are the payees. Zeckendorf & Co. wrote their name on the back of the note, and so are indorsers in blank. This was done on the date of the note. The evidence in this case confirms that. Plaintiff was willing to loan on Zeckendorf & Co.’s indorsement, and not otherwise. Zeckendorf & Co. negotiated this loan,—that is,- discounted the note,—and paid the brokerage therefor. The proceeds of the note went to them, and they, on the same day, gave Tully, Ochoa & Co. credit for the same. The transaction was no other than the ordinary discount by the payee of a note by indorsement. Tully, Ochoa & Co. owed Zeckendorf & Co., and gave their note to them, who indorsed it to plaintiff. It was not accommodation paper, nor an accommodation indorsement by a stranger to. the note, and hence does not come within Rey v. Simpson, 22 How. 341; Good v. Martin, 95 U. S. 90, and that class of cases. These cases hold that a stranger to a note, who indorses the same before delivery, is a [219] joint maker of the note. While this is sustained by the weight of authority, and, as we think, by the better reason, it has met strong opposition. See note to Burton v. Hansford, (10 W. Va. 470, 27 Am. Rep. 580; note to Jones v. Goodwin, (39 Cal. 493,) 2 Am. Rep. 475; note to Fitzhugh v. Love, (6 Call, 5,) 3 Am. Dec. 571; and note to Moies v. Bird, (11 Mass. 436,) 6 Am. Dec. 182. We conclude that the court below erred in holding that Zeckendorf & Co. were joint makers of the note with Tully, Ochoa & Co., and therefore liable as a principal. As first indorsers, Zeckendorf & Co. were entitled to notice of demand .upon and non-payment by the makers, Tully, Ochoa & Co., unless the evidence shows that this was waived. On the back of the note in evidence, on the date of the maturity of the note, was indorsed the words, “We hereby waive protest,” signed by Zeckendorf & Co., “J. Wittleshoeeeb.” It could not be contended that this would not be a waiver if signed by one of the firm of Zeckendorf & Co., but it is insisted that Wittleshoefer, who wrote “L. Zeckendorf & Co.” on the note bad no authority to do so. This was one of the issues of fact on the trial, and the court found that he had authority to waive protest, and bind the firm. We cannot say that this finding is erroneous. There is evidence to sustain it. The evidence was better presented before the trial court than it can be here, and that court can better determine disputed questions of fact. Etchells, with whom the note was left for safekeeping, testified that he told plaintiff when the note was due to remind him, and he would go and have them waive protest, or pay the money, that plaintiff did remind him, and on the day the note was due he took it to Tully, Ochoa & Co., first, and demanded payment, and they wrote their name on the back ofl it. He then took it to Zeckendorf & Co., and presented it to some one at the table in the front or main office, and he, whoever he was, directed him to Wittleshoefer, who was in the inner office. Wittleshoefer took the note and wrote the waiver of protest on the back, and handed it back to him. Nothing was said. He did not say he had no authority to do it. Wittleshoefer testified that he was the book-keeper of Zeckendorf & Co., and had been for five years; that the waiver of protest was in his handwriting; it was done in the office of Zeckendorf & Co.; Steinfeld and [220] Strauss were out of town; in their absence, that he had drawn cheeks; that his signature was placed in the bank by Mr. Steinfield; in the absence of Steinfield and Strauss, that he drew checks for the interest of the business, and it was left to his judgment as to amount, and when needed, and he would have checked to pay an accepted bill, when due and presented. Asked what he would have done if a matured note had been presented, and what would have been his authority, he did not answer. There was much evidence and much contradiction directed to proof of other similar acts by Wittleshoefer, but we do not think it material to inquire further. We think Zeckendorf & Co. were clearly bound by the waiver of protest by Wittleshoefer. Had he, in the absence of the members of the firm, and of Strauss, the general manager, been found in the general office of Zeckendorf & Co. on the day the note was due, and then and there he had been served with notice of demand upon the makers, and non-payment of the note, such service would have been good. Bank of Louisiana v. Mansker, 15 La. 115; Banking Ass’n v. Place, 4 Duer, 212; Jacobs v. Turner, 2 La. Ann. 964; Merz v. Kaiser, 20 La. Ann. 377. We quote from Daniels on Negotiable Instruments, § 1017: “Notice left with a clerk or person in charge at the party’s place of business, in his absence, or at his place of business, without proof as to the person with whom it is left, is sufficient; and proof that such person was not the party’s agent has been held irrelevant, notice being left at the right place. So, leaving it with his private secretary, at his public office, is sufficient.” Notice served upon Wittleshoefer would have been good service, but when the service was made he waived protest, and all further steps in the matter. If he were not specially authorized to do this, who should lose,—his employer, or the person who found him ostensibly in charge of the business, in the absence of the employer, and towards whom he demeans himself as general agent in charge, and assumes to act as such ? We think the former. This disposes of all the questions in the case. The judgment is affirmed. PORTER,-J., concurs.