Opinion
13316
January 5, 1932.
Before SHIPP, J., Florence, November, 1927. Affirmed.
Action by Murchison National Bank of Wilmington as Administrator cum testamento annexo of the estate of C.W. Hewitt, deceased, against A.B. Hamer. From a decree for plaintiff against named defendant, plaintiff appeals.
The Master's report and decree of Judge Shipp were as follows:
MASTER'S REPORTThis matter was referred to me by the Court of Common Pleas for Florence County to take the testimony and report the same with my conclusions. I have held a reference which was attended by counsel for plaintiff and also the defendant and her counsel.
The action is based upon a promissory note, which apparently was signed by A.B. Hamer and Agnes P. Hamer as makers; that is to say, both signed at the bottom of the note where the maker usually signs. The defendants answered setting up that Agnes P. Hamer was intended to be an endorser and that she signed at that place where the maker usually signs by mutual mistake between herself and C.W. Hewitt. That no notice of dishonor, protest or nonpayment had been given her as such endorser. Mr. Hewitt has since died and the Murchison National Bank has since been subsituated in this case as his administrator C.T.A.
A motion was made on behalf of plaintiff to strike out the answer of the defendants as sham and frivolous. His Honor, Judge S.W.G. Shipp, after hearing the matter, made an order awarding judgment against A.B. Hamer, but holding that if Agnes P. Hamer established her defense, she should be discharged.
It is conceded by counsel for plaintiff that the order of Judge Shipp is the law in this case and that none of the notices prescribed by statute were given. The only issue for me to decide is whether or not Mrs. Hamer is a comaker with A.B. Hamer or an endorser.
The testimony shows that this indebtedness originally was that of A.B. Hamer, evidenced by his note to C.W. Hewitt, without endorsement or liability in any way thereon of Mrs. Agnes P. Hamer. The note involved in this litigation was given in renewal of the note just mentioned. Over counsel's objections, Mrs. Hamer testified that Mr. Hewitt came to her home with the note, which had already been signed by Mr. Hamer, and requested that she endorse the same. At that time Mr. Hamer was absent from home. She signed the note as requested by Mr. Hewitt. In corroboration of her testimony she offered in evidence letter to her from Mr. Hewitt, of which the following is a copy:
Master for Florence County.
"Mr. and Mrs. Hamer: "You can sign and endorse note of 1 year and at that time if you want extension for another year I agree to extend note. "Nov. 14/22 C.W. HEWITT." The objection of counsel to this testimony is that it varies the terms of a written instrument. I cannot concede this view for the reason that the testimony does not change the terms of the instrument, but only establishes the relationship of the parties. It is stressed that the note contains on its face a promise of we or I, or either of us to pay, which language would tend to show joint and several liability, but I do not see how these words could establish the relationship of the defendants as maker or endorser. The testimony in evidence clearly shows that Mrs. Hamer was intended to be an endorser on the note. The letter from Mr. Hewitt requests, which is directed to her and Mr. Hamer, that they sign and endorse the note. To whom could the request to sign and the request to endorse apply? There is only one answer to the question; Mr. Hamer was Mr. Hewitt's original obligor and maker of the former note. Consequently, the request to sign could only apply to him and the request to endorse to Mrs. Hamer. I notice that the note involved in this case is dated November 10, 1922, and the letter from Mr. Hewitt dated November 14, 1922. Just why this elapse of time is not explained nor do I think it of any consequence in determining the intent of the parties. It is clear to my mind that it was the joint and mutual intention of Mr. Hewitt and Mrs. Hamer that she endorse the note and as plaintiff's counsel concedes if such being the intention it would not make any difference at what place on the note she subscribed her name. Having found that Mrs. Hamer was intended as an endorser on the note, both by herself and Mr. Hewitt, and the note not providing for waiver of the protest, dishonor and nonpayment, which is prescribed by statute to be given an endorser, it remains that Mrs. Hamer by reason thereof is discharged from responsibility and liability on this note. And I so find. I, therefore, recommend that the complaint of the plaintiff so far as Mrs. Agnes P. Hamer is concerned be dismissed at the proper costs and expense of the plaintiff. All of which is respectfully submitted. H.A. BRUNSON, DECREE OF JUDGE SHIPP This matter comes before me on the exceptions of the plaintiff to the report of the Master recommending that judgment be entered in favor of the defendant, Agnes P. Hamer.The action is upon a note signed by A.B. Hamer and Agnes P. Hamer, husband and wife. Judgment has already been entered against A.B. Hamer. Agnes P. Hamer signed the note involved in the action, and relied upon a separate defense in the cause, to the effect that while her name appears on the instrument as maker, she understood that she was endorsing the said note, and that if she was a maker thereof, it was through misunderstanding and mistake, and that no notice of dishonor, nonpayment, or presentment of the said note had been given her, wherefore she alleged that her liability was that of an endorser and that she had been discharged.
The plaintiff moved that this part of the answer be stricken out, and this motion was refused by me.
The case was referred to the Master by agreement of counsel, and a reference was held, at which the evidence taken supported the answer of Agnes P. Hamer, by showing that she intended to sign the said note as endorser, rather than as maker, and that the conditions for holding an endorser liable had not been complied with.
It is not necessary for me to go into the evidence in detail, or to discuss the various questions presented by the record as to the admissibility of certain of the testimony proffered by the defendant, Agnes P. Hamer, and objected to by the plaintiff, because there is sufficient testimony in the record to show that the said defendant intended to sign the note described in the complaint as endorser, rather than as maker, and that the necessary conditions to hold an endorser liable have not been complied with.
In this view of the matter, on the facts, the case comes within the ruling already made by me on a motion to strike out the answer, in which I held that the defense stated was legally good.
My views being as above expressed, it is,
Ordered and adjudged, that the complaint be dismissed as to the defendant Agnes P. Hamer.
Messrs. Samuel Want and Melvin Hyman, for appellant, cite: Terms under which note endorsed incompetent: 151 S.C. 44; 148 S.E., 648. Parol testimony to vary written terms inadmissible: 85 S.C. 419; 67 S.E., 559. When admissible by parol: 1 McC. Eq., 443; 2 Bailey L., 107. Issue for Court to reform note: 38 S.C. 440; 17 S.E., 45. Testimony of party in interest should be excluded: Section 708, Code 1922; 57 S.C. 467; 35 S.E., 764; 131 S.C. 140; 126 S.E., 429; 120 S.E., 84. Admission of written instrument: 154 S.C. 126; 151 S.C. 228. Whether signed as comaker or endorser party bound: 3 R.C.L., 1240; 3 R.C. L., 1187; 131 S.C. 265; 127 S.E., 365. Notice of dishonor not required: 140 S.C. 505; 139 S.E., 165.
Mr. Preston B. Thames, for respondent, cites: Proper place for endorsement: 7 Cyc., 793; 29 Ill., 92; 81 Am. Dec., 296; 4 Bush. Ky., 388; 8 C.J., 350; 120 Va., 812; 92 S.E., 979. Facts in dispute question for jury: 155 S .C., 38; 151 S.E., 785. Notice of dishonor must be given: 121 S.E., 262; 3 McC., 135; 8 C.J., 901.
January 5, 1932. The opinion of the Court was delivered by
While this cause is an action at law, the parties consented, as they had the legal right to do, for a trial, both as to the law and facts, by the Circuit Judge, with reference first to the Master.
Since the cause is at law, we are bound by the findings of fact of the Circuit Judge, if there was any competent and relevant evidence to support his findings.
The Circuit Judge, disregarding any incompetent evidence which may have been introduced before the Master, has found that there was sufficient competent evidence to show that the respondent, Mrs. Hamer, was indorser, and not a maker, of the promissory note, the subject of the action. We think he was entirely correct, for the letter referred to in the Master's report, written by the payee of the note, showed that it was the intention of all the parties that Mrs. Hamer was only to become indorser of her husband's note.
There can be no doubt of the relevancy and competency of that letter as evidence. It clearly appears, too, that the indorser was not given the required notice as to the dishonor of the note, and that she did not waive the giving of such notice.
If the promissory note before maturity, for value, had passed into the hands of a third party, questions not involved here might be raised; but the action was between the original payee, since deceased, represented by his administrator, and the signers of the note.
The report of the Master and the decree of the Circuit Judge will be reported.
It is needless to refer to all the exceptions, but they have been considered and are overruled.
The decree of Judge Shipp, appealed from, is affirmed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM concur
MR. JUSTICE COTHRAN did not participate on account of illness.