Hillegas v. Stephenson

Norton, J. This was an action against defendant for contribution as co-security on a promissory note. The-note was executed by plaintiff' and one J. R. Connor, as makers, and made payable to defendant, Stephenson. Stephenson, as payee named in the note, indorsed the note to the Eirst National Bank, Clinton, Missouri. The bank discounted the note for the benefit of Connor — neither plaintiff nor defendant receiving any of the benefits of the note. When the note became due it was protested for nonpayment, and within a few days thereafter plaintiff' paid off said note to the bank, Connor, for whose sole benefit the note was made, being at that time insolvent. The cause was tried by the -court without the intervention of. a jury, and judgment rendered for defendant, from which plaintiff appeals, and assigns • for error the action of the court in giving an instruction to the effect “ that although plaintiff signed the note as an accommodation maker and merely as security for Connor, and defendant, the payee and indorser of the note, was only an accommodation indorser, by means of which Connor, as the sole principal, 120 procured the money from the bank, plaintiff could not recover, unless it further appeared, that there was a special agreement between them that they should stand as co-securities and be liable to contribution.” This instruction presented the law governing the ease and was properly given. An examination of the petition discloses the fact that the pleader or draftsman of it entertained the same view of the law, for after setting .forth all the facts as to the execution of the note and its indorsement by the defendant, it is averred “ that both plaintiff' and defendant well knew and understood that said note was made for the accommodation of said Connor and that plaintiff' and defendant were co-securities therein.” The court in the instruction given adopted the theory of the case presented in the petition, and we think the theory was cori’ect. Plaintiff, as maker of. the note, assumed an unconditional obligation to pay it in the hands of the holder at maturity, whereas defendant being the payee, by his indorsement only assumed the obligation to pay the note if the makers did not upon due presentment and proper notice of default. Story on Prom. Notes, §§ 113, 135. In the case of McCune v. Belt, 45 Mo. 174, it was hold “ that in the absence of any special agreement the relation which pai’ties to a note bear to each other is to be detei’mined by the instrument to which they ax’e pai’ties. If they intend to be co-securities; they should so agree, or should be drawers merely.” Judgment affirmed, in which all concur.