Gordon v. Third National Bank/Opinion of the Court

Seventeen errors are assigned, of which those in relation to the jurisdiction of the circuit court, to the admission of the notes in evidence, and to the rulings of the court in the exclusion of testimony are relied on.

The question of jurisdiction is raised for the first time in this court, and as we are of opinion that the diverse citizenship of the parties appears affirmatively and with sufficient distinctness from the record, of which the summons forms a part, we must decline to reverse the judgment on this ground, although greater care should have been exercised by the plaintiff in the averments upon that subject.

Nor do we regard the stamping of the waiver and guaranty upon the back of the notes as altering them, so far as Gordon was concerned, in a material particular, and thereby rendering them inadmissible in evidence. Gordon was the maker of the notes, and had indorsed them simply to give them negotiability. No waiver of demand or protest was necessary to hold him liable. It was put on the notes on account of Crudup & Co., the indorsers, and at their request; and the mere inadvertence in placing the words above the name of Gordon, as well as above that of Crudup & Co., on the back of one of the notes, had no effect upon Gordon's rights.

This brings us to consider the main position taken in the argument of counsel for plaintiff in error,-that the court erred in excluding evidence offered on his behalf. The contention is that although the bank took the notes for value in ignorance that they were accommodation paper, yet, after they matured, the bank was informed that such was the fact, and then extended the time of payment by agreement with Crudup & Co. without Gordon's knowledge or consent, and also waived its right to have the notes paid out of the property conveyed under the deed of general assignment; and that this constituted a defense which the excluded evidence tended to make out. It is a sufficient answer to this contention that there was no evidence tending to show a contract of extension for a valid consideration and for a definite and certain time, binding in law upon the parties, and changing the nature of the contract to the prejudice of Gordon. McLemore v. Powell, 12 Wheat. 554; Creath's Adm'r v. Sims, 5 How. 192. The hands of the bank were not tied by anything it had done, and Gordon could have paid the notes and sought his remedy against Crudup & Co. at any moment. The bank did not know that the transaction with Richmond was made to include these notes; but, even were this otherwise, the defeasance did not amount to a contract of extension on its part. Nor did the evidence tend to show any agreement between Gordon and the bank that the latter would look to the assets of the Crudup concerns for payment, and a loss by reason of laches on the bank's part.

The second assignment provided that the proceeds of the property should be to a considerable extent differently applied than under the first one, and the bank was not a party to it. Crudup & Co., could not resume the title to their property, and the first assignment was operative, notwithstanding the death of one trustee and the declination of the other; and in any view there was no legal suspension of the right to proceed upon the notes which would have prevented Gordon, on taking them up, from enforcing them. The evidence was clearly immaterial and irrelevant, and properly excluded; and, as there was no error in the rulings of the court, the judgment must be affirmed.