Moses v. National Bank of Lawrence County

This was an action by the National Bank of Lawrence county against H. C. Moses, M. L. Moses, Alfred H. Moses, O. O. Nelson, and J. R. Adams on a guaranty. There was a judgment for plaintiff, and defendants bring error. Reversed.

Statement by Mr. Justice GRAY:

This was an action, brought April 16, 1888, by a national bank, organized under the acts of congress, and doing business in and a citizen of Pennsylvania, against six persons, citizens of Alabama, and residing in the middle district of Alabama, to recover the amount due on a guaranty of a promissory note.

The complaint alleged that on August 15, 1887, the Sheffield Furnace Company, an Alabama corporation, made a promissory note for $12,111.51, payable to its own order four months after date at the banking house of Moses Bros. in Montgomery; that, contemporaneously with the making of the note, and before its delivery or negotiation, and in order to give it credit and currency, its payment at maturity was guarantied by the defendants, for a valuable consideration, by an indorsement in writing on the note in these words, 'We hereby guaranty the payment of the note at maturity,' signed by the defendants, and which was intended by them to induce, and which in fact induced, James P. Witherow and] all others to whom the note and guaranty were offered for negotiation and sale, to take the note and guaranty, and to give value therefor; that the note, with the guaranty thereon, was before its maturity duly indorsed for value by the Sheffield Furnace Company to the order of Witherrow; that afterwards, and before the maturity of the note and guaranty, Witherow indorsed the note, guarantied as aforesaid, to the plaintiff for value; that afterwards, and before the maturity of the note and guaranty, the defendants indorsed in writing on the note their waiver of protest and notice; that the note was not paid at maturity, and that the note and guaranty remained unpaid, and the property of the plaintiff.

The defendants pleaded 12 pleas, of which the only ones material to be stated were as follows:

Fourth. That the guaranty sued on was a special promise to answer for the debt of another, and did not express any consideration for the promise.

Fifth. That the note was given by the Sheffield Furnace Company for a debt owing to Witherow before it was made, and was not founded upon a consideration paid or liability accrued at the time of the making thereof, and the guaranty was without any consideration.

Eighth. That the Sheffield Furnace Company paid the debt sued on to Witherow before this action was commenced.

Twelfth. That the guaranty sued on was a special promise to answer for the debt of another, and did not express any consideration therefor, and was not executed contemporaneously with, nor before the negotiation of, the note of which it guarantied the payment.

The plaintiff demurred to the fourth and fifth pleas, because they did not deny that the defendants indorsed the guaranty upon the note contemporaneously with its execution and before any negotiation thereof; and also demurred to these pleas, as well as to the twelfth, because they did not deny that the defendants indorsed the guaranty upon the note before its negotiation to the plaintiff and in order to give it credit and currency, nor allege that the plaintiff had notice of any want of consideration for the guaranty.

To the eighth plea a replication was filed, alleging that the plaintiff became the owner of the note for a valuable consideration before maturity, and that no part thereof had ever been paid to the plaintiff, or to any one authorized by the plaintiff to receive it. To this replication the defendants demurred.

The court sustained the demurrers to the pleas, and overruled the demurrer to the replication.

Issue was then joined on the eighth plea and the replication thereto, and a trial by jury was had upon that issue, at which the plaintiff gave in evidence that note, purporting to be 'for value received,' and the following indorsements thereon, in the order in which they appeared upon the note: First, 'Pay to the order of J. P. Witherow,' signed by the Sheffield Furnace Company. Second. An indorsement in blank by Witherow. Third. 'We hereby guaranty the payment of this note at maturity,' signed by the defendants. Fourth. Another blank indorsement by Witherow under the guaranty. No other evidence was introduced. Thereupon the court instructed the jury to render a verdict for the plaintiff for the amount sued for, with interest. A verdict was returned accordingly, and the defendants, having duly excepted to the evidence and to the instruction, tendered a bill of exceptions, and sued out this writ of error.

John D. Roquemore and W. A. Gunter, for plaintiffs in error.

Henry B. Tompkins, for defendant in error.

[Argument of Counsel from pages 300-302 intentionally omitted]

Mr Justice GRAY, after stating the facts in the foregoing language, delivered the opinion of the court.