Litchfield v. Allen

COLLIER, C. J. — When this cause was here several years ago, we said, that “ the transfer of a promissory note by in-dorsement, furnishes a sufficient consideration for a promise by the indorsee, to pay the indorser an equivalent sum, and the onus of showing a failure of consideration, is then thrown upon the indorsee.” This being the law, it follows, that the indorsement of the Arringtons’ note was prima facie an equivalent for the specialty on which the action in the case at bar is founded, and it devolves upon the defendants to show that the consideration of the latter has failed. By the act of 1828, as explained by that of 1829, it is declared, that all contracts in writing, for the payment of money, &c., saving those governed by the rules of the law merchant, &c., may be assigned as heretofore, and the assignee may main-' tain suit thereon, &c. Provided, it be brought to the first Court of the county where the maker resides, to which suit can be brought, and if he fail to sue the maker, &c., the in-dorser shall be discharged, unless suit shall be delayed by his consent. When the sum due does not exceed fifty dollars, suit is required to be brought within thirty days after it becomes payable; or if indorsed after maturity within thirty days after the indorsement; unless the indorser consent in loriting, that further time may be given to the maker or obligor; or unless the maker, &c., is absent from his residence, or it is unknown, unless the indorser require in writing the indorsee to bring [783] suit immediately, &c. [Clay’s Dig. 383, § 12, 15.] It is perfectly clear, that where the sum due exceeds fifty dollars, that the act cited does not require that the indorsers consent to delay suit against the maker should be in writing ; such a requisition is only made where the amount is within the jurisdiction of a justice of the peace. The statute being out of the way, there is no rule of law, or policy to prevent a verbal consent from binding the indorser. This conclusion being attained, it follows, that the plaintiff’s consent not to sue the Arringtons to the first Court after their note matured, was equally available for the defendants, whether verbal or written. In inquiring whether the consideration of the writing now in question has failed, it is not important to consider whether the Arringtons’ note was regularly indorsed, both by the payee and the plaintiff. That would be a material inquiry on the trial of an action against the plaintiff upon his indorsement j for in the absence of consent countervailing the requirement of the statute, greater diligence would be required of the indorser in the one case than the other. But in the present case, the failure of the defendant, Allen, to pursue his remedy with promptness against the makers of the note indorsed to him, cannot prevent him from insisting upon a failure of consideration, if that remedy would have been unavailing; or, to speak with more plainness, if the. Arringtons were insolvent before a judgment could have been obtained against them, and made productive, and still continue so, although no suit was brought against them, the plaintiff cannot recover. Where one person gives to another his note, and receives the note of a third person, indorsed by the payee in exchange, the insolvency of the maker of the latter may be shown by parol evidence, so as to defeat the recovery of the former. It is only in an action by the indorsee against the indorser as such, that the inability of the maker to pay, must be shown by the production of an execution returned “no property found.” This results from the-express provision of the statute. [Clay’s Dig. 383, § 16.] To entitle the defendants to insist upon a failure of consideration, it was not necessary that Allen should have released the plaintiff from his indorsement, to the extent of the sum the latter is now seeking to recover. If the plaintiff is unsuccessful in this case, he may claim a deduction pro lanío, if liable [784] upon his indorsement. The pendency of the action against him in Sumter cannot prejudice the defence which the defendants have interposed. That suit may well be prosecuted to recover the price of the negro, the purchase of which by the plaintiff, seems to have induced the transaction out of which the controversies between the parties arose. If the Arringtons should ever become able to pay the judgment against them, and the plaintiff made liable as an indor-ser, he will be entitled to the judgment in order to reimburse himself. He cannot then object to the defence set up in this case, that a part of the judgment was not assigned, since, upon paying so much as Allen was entitled to, he will become its sole proprietor. This view of the case will show that the plaintiff is not prejudiced by the adjudication of the legal questions in the Circuit Court. True, the law is not laid down with exact accuracy, but quite as favorable to the plaintiff as we have stated it. The admission of the record adduced by the defendants, and the charge in respect to it, related to an immaterial fact, and whether proper in the abstract, or not, could work no injury to either party. The consequence is, that the judgment is affirmed.