Central Savings Bank v. Mead

Ewing, Judge, delivered the opinion of the court. This is a suit on four promissory notes executed by Wm. [548] Morrison & Co., and indorsed by L>. T. Wright & Co., bearing date respectively, Sept. 26,1870; October 31,1870; November 5th, 1870, and December 7th, 1870. The petition alleges that Maddox in his life time was a member of the firm of D. T. Wright & Co., and he died in October 1869; that prior to that time plaintiff had loaned to Wright & Oo., and Wm. Morrison & Go., on the notes of the latter which were indorsed by Wright & Co., $19,000. That subsequently, at the maturity of the no tes,said Wm. Morrison & Co., and D. T. Wright and E. H. Moore, surviving partners and still prosecuting business under the style of D. T. Wright & Co., renewed the notes by paying a portion of the principal and interest; that these renewals were continued from time to time upon payment of the interest and part of principal at each renewal, until the debt was reduced to $8,800, for which sum the notes described in the petition were given. That as said notes matured, D. T. Wright & Oo. waived in writing demand of payment, notice, &c., except as to one of them, which was duly protested for non-payment and notice thereof given; that these several notes wer.e renewals of the notes falling due next after the death of said Maddox, and that they were not taken in payment and satisfaction of the notes indorsed by D. T. Wright & Co., during the life of said Maddox. The answer of the administrator was a denial of any knowledge respecting the matters stated in the petition. There was a judgment for the defendant, which being affirmed at General term, the cause is brought here by appeal. It appears from the evidence, that the firm of D. T. Wright & Co., was originally composed of D. T. Wright, E. H. Moore and Turner Maddox deceased; that while Maddox was alive the firm indorsed certain notes for the accommodation of Wm. Morrison & Oo., the makers, which matured after the death of Maddox and were never protested; that after Maddox’s death Wright and Moore still continued business in the firm name of D. T. Wright & Oo., that Morrison & Co., paid something on said notes, and executed new notes with D. T. [549] Wright & Co., as indorsers, that firm being then composed of Wright and Moore; that these notes were renewed from time to time by Morrison & Co., with the same indorsers, partial payments being made on each renewal and the notes sued on being the last renewal. It also appeared in evidence that the old notes as they were renewed were surrendered by the plaintiff to Morrison & Co., and were destroyed by them; that they were sometimes marked paid, by the teller of the bank, and at other times not. The President of the bank testified that the notes given in renewal were not taken in payment and satisfaction of the notes due next after the death of Maddox; that the board accepted part payment and a renewal as to the balance, with the understanding with Wright that the new notes were not taken in payment or extinguishment of the original ones, but that they intended still to hold the estate of Maddox liable. The mere statement of the facts shows that the case is without merit. The firm, of which Maddox was a member, were indorsers for the accommodation merely of Morrison & Co., and their liability was of course conditional; the notes so indorsed matured after the death of Maddox; were never protested, and none of the steps usual in such cases were taken to make the estate of Maddox liable upon his indorsement. On the contrary, new notes were executed by Morrison & Co'., to the plaintiff, and indorsed by Wright and Moore, the surviving members of the firm; and the old notes surrendered to the makers Morrison & Co., and by them destroyed. Any understanding between the plaintiff and Wright when the new notes were given, after the death of Maddox, to the effect that they were not taken in satisfaction of the original debt, and that plaintiff would hold the estate of Maddox liable therefor, could not bind the estate. He had no authority to enter into any such agreement. Had Maddox been living and the partnership still existing, there would have been no implied authority on the part of Wright to bind him in a transaction of this character unconnected with the partnership. Judgment affirmed. The other Judges concur, except Judge Sherwood who is absent.