Opinion
(June Term, 1845.)
1. A. drew a bill, which was indorsed by B. at the request of the drawee and for his accommodation, and acepted [accepted] by the drawee. A. being desirous of having the bill discounted at bank, requested C. to indorse the bill as it then stood. Held, that on the dishonor of the bill and its payment by C., C. had a right to recover the amount from B., the prior indorser.
2. An accommodation bill drawn for the purpose of being discounted at a bank, and at the foot of the bill was a memorandum, signed by the last indorser, directing the proceeds of the bill to be credited to the drawer. On the trial of a suit on the bill by the last against a prior indorser it appeared that this memorandum had been cut off. Held, that the memorandum was no part of the bill, and that its being taken off in no way affected the rights of the parties to the bill.
APPEAL from CASWELL, Spring Term, 1845; Caldwell, J.
No counsel for the plaintiffs.
Kerr and Norwood for the defendants.
This is an action by the plaintiffs, as the holders, against the defendants as endorsers, of a bill of exchange for $253.92, drawn by James C. Crane, at Richmond, Va., in favor of the defendant, Williamson, on Wiatt Walker, of Yanceyville, in this State, at 90 days, which was accepted by Walker, payable at the branch of the Bank of Virginia, at Danville, and was endorsed by Williamson to the other defendant, Roane, and by the latter to the plaintiffs. Upon non assumpsit pleaded, the evidence was that Walker had before drawn a bill on Crane for $250, payable in Richmond, in favor of Williamson, and that Williamson and Roane endorsed it, and Crane accepted it for the accommodation of Walker, who procured it to be discounted, and received the money to his own use; and that the bill now sued on was drawn by Crane for the purpose of raising money to meet the first, and was endorsed by the defendants at the request of Walker and for his accommodation, and was by him transmitted, accepted and thus endorsed to Crane, that he might procure it to be discounted and raise the money as aforesaid. In order to give it credit at bank, Crane requested the plaintiffs to (398) endorse the bill, and they did so, as they were in the habit of endorsing Crane's paper for his accommodation. The bill was then offered by Crane for discount at a bank in Richmond, and was discounted, and the proceeds paid to Crane; and the bill was then sent to the bank at Danville for collection, and not being paid at maturity, it was duly protested, and notices given to the drawer and endorsers, and the plaintiffs took it up and instituted the present action on it. It appeared from the copy of the bill, set forth in the protest, that when it was proested [protested] it had a note or memorandum at the foot of it as follows: "Cr.: J. C. C. — K. G. C." which, upon the production of the bill on the trial, did not appear on it, but the same had been obliterated and cut off.
The defendants contended that the plaintiffs were cosureties with Crane and themselves for Walker, and, therefore, that an action against the defendants jointly could not be sustained; and, secondly, that there had been such a mutilation of the bill, as to destroy it and prevent a recovery by the plaintiffs. Upon the first point the court instructed the jury that the plaintiffs did not endorse the bill with the intention of being the sureties of Walker with the defendants and Crane, and that he could recover against the defendants as the prior endorsers. Upon the second point, the instruction was that if the jury believed the plaintiffs made the mutilation with a fraudulent intent they could not recover; but if it was done by a stranger, or by the plaintiffs accidentally, it did not affect the instrument. Under these instructions the jury found for the defendants; and from the judgment the plaintiffs appealed.
As there was no evidence that the note or letters below the bill had been taken off by a stranger, or by any accident or mistake of the plaintiffs, there was no ground for submitting the case to (399) the jury in those respects. It is to be assumed, therefore, that the plaintiffs themselves, or some holder of the bill did the act, and that they did it of purpose, at least; if not, in the language of the charge, fraudulently. Thus viewing the case we should concur with his honor and deem the bill destroyed, provided the words or letters in question formed a part of the bill, so as to make their removal a mutilation of that instrument, as it is called. But we cannot so regard those letters. In themselves they are insensible, and cannot be understood as in the least degree varying the terms of the bill as expressed at large on its face, nor the legal rights or liabilities of the party to the bill. But to persons conversant in business, the object in making the note and its meaning are very intelligible. When the plaintiffs put their name on the paper it was to give it credit at bank that it might be discounted. Now, in a regular business transaction, as every one is to be supposed prima facie to be, the plaintiffs, as the immediate endorsers to the bank, were to be treated as the owners of the paper and its offerers, to whose credit the proceeds of the discount were to be passed. But as this was not real paper belonging to the plaintiffs, as upon the face of things it seemed, but was a wind bill, on which the object was to raise money for Crane to meet his previous acceptance for Walker's accommodation, the parties, that is, Crane and the plaintiffs, did not wish to go through the needless trouble of having the money paid first by the bank to the plaintiffs, and then by them to Crane; but, rather, that Crane should receive it in the first instance. No doubt, therefore, that the letters marked at the bottom of the paper meant that if the note should be discounted, the proceeds were not to be entered to the credit of the plaintiffs, as the apparent offerers. It was an order signed with the initials of the plaintiffs: "Credit James C. Crane," who is the real offerer. It was nothing more, in fact, than a memorandum to enable the bank officers to pay the money to the proper person, as between the plaintiffs and Crane. It was well understood at the bank, and the money was (400) paid to Crane and when that was done the note had answered its purpose and was no longer of any use when the bill came again into the plaintiffs' hands. It was a mere note, to serve instead of a check for the proceeds of the bill by the plaintiffs in favor of Crane, and was exclusively, therefore, between those parties and the bank. It formed no part of the bill itself, did not modify its terms or legal operation, or concern the acceptor or prior endorsers; and, therefore, there has been no mutilation in the case, that is, of the bill. It is precisely the same as if the memorandum had been on a different piece of paper; and the removal of it has not altered the tenor of the bill in the least.
Upon the first point we fully concur with his honor. The demand of the plaintiffs on the defendants arises naturally and legally out of the order in which their names appear on the bill; and there is nothing to vary it. The plaintiffs did not endorse at the request or for the accommodation of Walker, but at the request and for the benefit of Crane. They endorsed the bill with the names of Williamson and Roane on it for the purpose of giving it additional credit in the market for the accommodation of Crane, and not for the purpose of sharing in the risks assumed by the defendants for Walker. They have just as much right to look to the prior endorsers for payment as to the acceptor himself. The Court is of opinion the plaintiffs were clearly entitled to a verdict; and, therefore, the judgment must be reversed, and
PER CURIAM. Venire de novo.
(401)