Commercial National Bank v. Atkinson

The opinion of the court was delivered by Ellis, J.: It is contended on behalf of the plaintiff in error that the affidavit of the defendant’s attorney verifying the amended answer to the third count of the petition is not sufficient, and, therefore, that [780] the plaintiff should have had a judgment on said count. We agree with counsel that the affidavit was not sufficient. The statute (Gen. Stat. 1889, ¶ 4197; Gen. Stat. 1897, ch. 95, §114; Gen. Stat. 1899, §43.64) provides : “When the affidavit is made by the agent or attorney, it must set forth the reason why it is not made by the party himself.” It does not follow, however, that this objection, raised for the first time in this court, can avail the plaintiff. To the original answer a sufficient affidavit was appended, and in such answer was stated a sufficient defense to have sustained a judgment to this cause of action, if one had'been rendered. The parties in the court below elected to treat the case as though the answer of the defendant was properly verified. No motion was made for judgment on the pleadings, and the plaintiff assumed the burden of the issues, and offered its proof with reference to this note as well as to others. The original answer as to the third count of the petition had been supplanted by the amended answer; still the parties, had they chosen so to do, might have treated the original answer as still in force. The ground upon which the defendant below based his right to have the depositions taken by the plaintiff suppressed was that the notice had not been served on an attorney of record in the case, but had been served on one who had acted for the defendant in taking depositions, and in his behalf had previously acknowledged service of notice to take depositions which were used in the case. Whether the defendant could thus recognize and ratify the acts of such attorney so far as the same might be regarded as serving his interests, and then repudiate and refuse to be bound by other acts of the same nature, performed by the same attorney in the same case, and under the same em [781] ployment, on the ground that he was not an attorney of record therein, we need not decide, for it appears that other depositions of the same witnesses were taken in the case, and it is not here contended that the plaintiff was deprived of any important testimony of either of such witnesses by reason of the suppression of said depositions. As to the refusal of the court below to suppress the depositions of defendant, it is enough to say that, although the package arrived in bad order, all legal requisites had been complied with, and the depositions themselves were neither separated nor mutilated. The court did not err in refusing to suppress them. The judgment rendered against plaintiff on the first, second and fourth counts of the petition was fully sustained by the findings of the jury, which in turn were sustained by the evidence.' Such judgment must, therefore, be affirmed. As to the assignment of error founded upon the action of the trial court in sustaining defendant’s demurrer to the evidence as to the third count of the petition, a more difficult question is presented. The record does not show upon what particular ground the court sustained the demurrer. We presume, however, that it did so for the reason that the signature of the defendant was below the indorsement of the payee upon the back of the note, and the court probably inferred, as a matter of law, that the defendant was an accommodation indorser, and as such entitled to notice of non-payment. In ordinary cases such a ruling would be correct, for in the case of Bradford v. Pauly, 18 Kan. 216, this court held: “Whenever a negotiable promissory note is drawn up and is signed by the maker thereof, and is then indorsed in blank, first by the payee thereof and then [782] by a third person, and the note is then delivered by the maker thereof, for a sufficient consideration, to still another person, who thereby becomes the holder «thereof, the presumption in such a case should be, and is, that the payee and said third person intended to .assume, and did assume, all the rights and privileges, as well as all the obligations and liabilities, usually assumed by indorsers of negotiable instruments.” Again, in the case of Cornett v. Hafer, 43 Kan. 60, 22 Pac. 1015, it was held: “Where a negotiable promissory note, after its execution and delivery, is indorsed by the payee, and then indorsed by a third person, and is then sold by the payee to still another person, all before the maturity of the note, both the indorsers will be held to be ordinary indorsers.” The weight of authority, however, is in favor of the proposition that “parol evidence is admissible to show the extent of the contract entered into by one who is a stranger to a note and indorses it in blank after it is made.” (2 Rand. Comm. Pap. §868.) This is undoubtedly the rule where a stranger to a promissory note writes his name across the back thereof before its delivery to the payee. In this case the evidence tended to show that the clerk of T. J. Garlick prepared the note and executed it as maker in behalf of T. J. Garlick & Co., by authority of T. J. Garlick, who was the sole member of the so-called firm of T. J. Garlick & Co. The Silver Cliff Tow Boat Company, to which the note was made payable, was a corporation, but was managed and controlled, so far as the evidence shows, .'ntirely by T. J. Garlick. The business of such corporation was done in the same office as that of T. J. Garlick & Co., and the clerk who executed the note for the makers also indorsed it for the payee. It [783] also appears by the evidence that Garlick, on behalf of Atkinson & Garlick, T. J. Garlick & Co., and the Silver Cliff Tow Boat Company, was, for a considerable period, engaged in “kiting” paper between his said three firms, and also between said firms and the Shetter Foundry and Machine Company. It would appear from the evidence that the credit of these several firms was maintained for some time by the method pursued, which was to pay off one note by giving a new one against another firm, without any consideration passing between the firms engaged in such transaction. It is in evidence that Atkinson signed the note in question after said clerk had indorsed the name of the payee upon it, but there may not have been at any time an actual delivery by the maker to the payee, and it is questionable whether, from all the circumstances, a jury might not have inferred that Atkinson was cognizant of the method of doing business to which we have referred-. Therefore, we hold that parol evidence was admissible to show the exact nature and extent of the contract of Atkinson, assuming the rule to be that in the absence of any contract at all his liability would have been that of an accommodation indorser. Under the circumstances, we think the court below could not say, as a matter of law, that there was no evidence from which a jury might have determined that the defendant had, in fact, assumed a different liability. While it is true that the third count of the petition, like the answer thereto, was inartistically drawn, it was sufficient, after the court had admitted the evidence under it, to sustain a judgment. It follows that the court erred in sustaining the demurrer to the evidence as to the third count of the petition, and as to such count its judgment will be reversed, and a new trial granted.