Hawkins v. Shields

McLean, J., delivered the opinion of the court. W. B. Johnson and wife were indebted to one Bluett Lee, and in order to secure payment of this indebtedness, on December 24, 1904, executed a certain deed in trust upon certain real estate. Subsequently to this Johnson — 745 — and wife become indebted to J. T. Shields, and in order to secure the payment of this indebtedness also executed a certain deed in trust upon the same property, and at a still later date, being indebted to E. B. Hawkins, executed a third deed in trust conveying the same property. The indebtedness to Shields was evidenced by eight promissory notes, all of which were dated January 3, 1906. These notes were made payable to the order of J. T. Shields and were due at different dates; the first one being due on April 15, 1906, and the last one on December 15th of the same year. ■ In January, 1907, Shields borrowed some money from the Citizens’ Bank, and in order to secure the payment of this loan he indorsed, by writing his name across the back, the Johnson notes, and delivered them to the bank. Some time-after that Shields paid his note to the bank, and the Johnson notes were surrendered to him. In August, 1909, Shields proposed to dispose of these notes to Hawkins. The matter was consummated, and Hawkins became the owner of the notes. Shields delivered the notes, with a written indorsement thereon. At the time of the purchase of these notes it was suggested by Hawkins that it would be necessary for the transfer of the notes to be marked on the record; and that this transfer would have to be acknowledged, and that it would cost something to have this done; but after advising with an attorney it was escertained that it was not necessary for an acknowledgment to the transfer to be made on the record. The real estate covered by the several mortgages was sold under the first trust deed, and Hawkins became the purchaser. The property did not bring enough money to pay the debts covered by the first and second trust deeds, and the result was that Hawkins demanded of Shields the balance that was due on the Johnson notes, transferred by Shields to Hawkins. The defense set up by Shields was that at the date of the transfer Shields was not to be responsible as an — 746 — indorser of the notes. There is no evidence in the record to show that at the time of this transfer there was any understanding at all between Hawkins and Shields as to the latter’s liability on the notes as indorser. Hawkins never said anything to Shields about being liable as indorser until after the property was sold under the trust deed, but shortly thereafter he made demand upon Shields for the difference. Shields’ testimony on this point is as follows: . “There was no agreement between me and you that I was to become responsible. He says: ‘I know it, but the place did not bring enough to pay the two notes; but, as your indorsement is on the notes, I will look to you for it.’ I says: Hf I was legally or morally responsible to you, I would pay you; but I am neither legally or morally responsible for it. You did not ask me to indorse them to you, and for that reason I will not pay it, unless the law says so.’ ” Objection was made to the testimony of Shields, objection overruled, and exception taken. The court gave the following instruction for the defendant : ‘ ‘ The court instructs the jury for the defendant, Shields, that if they believe from the evidence that Shields did not indorse said notes for the purpose of transferring same to E. B. Hawkins, and that the only requirement of Hawkins from Shields was that Shields was to make the transfer on the record of the deed of trust, then plaintiff cannot hold Shields on said indorsement, and the jury will find for the defendant.” And a verdict was returned for the defendant, and from the judgment entered thereon this appeal is prosecuted. In the first place, it may be said there was no evidence at all, even if it were admissible*, that the indorser, Shields, was not to be responsible in the event the makers failed to pay the notes. There was in truth and in. fact no agreement one way or the other about this matter. Evidently the conversation relating to having the record show a -transfer of the notes was for the purpose — 747 — of complying with section 2794 of the Code of 1906, to the effect that “the assignor shall be required by the assignee to enter the fact of the assignment on the margin of the record of the lien, and in default of making such entry in satisfaction of the lien or instrument evidencing it, entered by the original creditor, shall release the same as to subsequent creditors and purchasers for value without notice,” etc.; and under section 2795 of the Code it is provided that “all assignments of any indebtedness secured by a mortgage (etc.) shall be entered on the margin of the record of the lien within thirty days from the date of such assignment, and for a failure so to do the assignee shall forfeit to the debtor ten per cent of the amount of said indebtedness.” We must conclude from the evidence in this case that the conversation had between Hawkins and Shields, as to letting the record show the assignment, was simply for the purpose of complying with the provisions of these two statutes. The indorsement of a bill or note is not merely a transfer thereof; but it is a fresh and substantive contract, embodying all of the terms of the instrument in-itself. The indorsement of a bill is equivalent to the drawing of a new bill by the indorser upon the drawee in favor of the indorsee; and the indorsement of a note is equivalent to the drawing of a bill upon the maker, who stands in the relation of acceptor, as it were, in favor of the indorsee. So entirely distinct and independent is the contract of an indorser of a note thereof and the maker that at common law a separate action against each was indispensable. The indorser engages that the bill or note will be' accepted or paid, as the ease may be, according to its purport; but this engagement is conditioned upon due presentment of demand and notice. It also engages that it is in every respect genuine, that it is the valid instrument it purports to be, that the ostensible parties are competent, and that he has the lawful title to it and — 748 — the right to indorse it. Such is the nature and effect of the contract of indorsement as shown by all of the authorities. As between the indorser and indorsee there is no difference in the contract of indorsement, so far as the rights and liabilities of the indorser are concerned, when the indorsement is made before and when made after maturity; the only difference being that, when the indorsement is made before the maturity of the bill or note, the time of payment is fixed by the terms of the instrument itself, but when the indorsement is made after maturity, payment must be demanded of the payor within a reasonable time and notice, in the event of a refusal given to the indorser in order to charge him. . In such an instance the instrument is regarded as being equivalent to one payable on demand. Daniel on Negotiable Instruments (5th Ed.), section 611, and authorities cited in notes; 7 Cyc. 822, et seq.; Baskerville & Whitfield v. Harris, 41 Miss. 535. The' great weight of authority is that, when the facts are few and simple, it is within the province of the court to determine what is reasonable time; but, when,they are complicated and doubtful, they should be left for the ascertainment and judgment of the jury under proper instructions from the court. Further, that when the facts are ascertained it is for the court to determine what is reasonable time as a,matter of law. Daniel on Negotiable Instruments, section 612; Baskerville & Whitfield v. Harris, 41 Miss. 535. It is elementary that parol evidence is never admissible to contradict or vary the terms of a valid written instrument. While this general principle is admitted to be applicable to all contracts written out in full, some authorities are not willing to apply this principle to those contracts which are raised from implication by the operation of law, such, for instance, as indorsements in blank. Such seems to be the rule in Pennsylvania* — 749 — North Carolina, Florida, Colorado,- and Connecticut; but this doctrine is certainly opposed to the great weight of authority, and also to the better reason. "When it appears from an inspection of the paper that the party is an indorser, there seems to be no just ground for the distinction taken between the implied contract from his mere name thereon written and contracts written out in extenso. The signature of the indorser upon the bill or note is as marked a manifestation of the intention of the party as if the contract were set forth in express words. All of the authorities hold that, though there be nothing but the indorser’s signature, the indorser’s contract is as fully expressed as that of the drawer of the bill or maker of a note payable to bearer; and it is a general rnle, supported by the great weight of authority, that the indorser in a suit brought by the indorsee, whether mediate or remote, cannot show by parol that it was,agreed that the indorser should not be liable, and that his indorsement was without recourse on him. Brown v. Spofford, 95 U. S. 474, 24 L. Ed. 508; Martin v. Cole, 104 U. S. 30, 26 L. Ed. 647; Daniel on Negotiable Instruments, section 709; Tiedman on Commercial Paper, section 274. Indeed, this is no new question in this state, as has been so declared by this court. Baskerville & Whitfield v. Harris, 41 Miss. 530. In denying the admissibility of parol evidence to vary or to contradict the terms of a contract of indorsement, we, of course, do not extend this rule, so as to exclude evidence offered to show want of failure of consideration, or in cases of irregular indorsement (Thomas v. Jennings, 5 Smedes & M. 627; Polkinghorne v. Hendricks, 61 Miss. 366; Holmes v. Preston, 70 Miss. 152, 12 South. 202; Richardson v. Foster, 73 Miss. 12, 18 South. 573, 55 Am. St. Rep. 481; Pearl v. Cortright, 81 Miss. 300, 33 South, 72), or to impeach the original or present indorsement -on the ground of fraud, nor to exclude the parol evidence to the effect that the indorsement wa« — 750 — upon trust for some special purpose, as from a principal to an agent, or for collection merely, or as an escrow upon an express condition that has been complied with, and in cases of fraud, and perhaps in other instances. The evidence in this case shows that the indorser wrote his name in blank across the back of the notes and delivered the same to a bank, when he hypothecated these notes as collateral security for an accommodation extended by the bank; that when he paid the bank its debts these notes were surrendered to the indorser, Shields; that the indorser did not erase his indorsement, but the same remained on the notes, and when subsequently, he made the contract with" the. appellant, Hawkins, he, the indorser, did not rewrite his name or reindorse the notes, but delivered the notes with the old indorsement thereon — it being a blank indorsement. It was not at' ‘all necessary to reindorse the notes. The delivery of the notes with the old indorsement thereon was an adoption of the former indorsement, and was equivalent to a new indorsement. No authority is needed for so obvious a proposition. The instruction given for appellee was in direct conflict with this opinion, and the cause is reversed. Reversed.