Opinion filed November 7, 1933.
Conclusiveness of Facts Found by Lower Court on Supreme Court — G.L. 2259 — Question Raised by Exception to Judgment — Finding That Persons Signing Note Assumed Obligations of Maker as Conclusion of Law — Conclusion of Law as Reviewable under Exception to Judgment — Determination of Relation of Persons Signing Note Thereto — Bills and Notes — Negotiable Instruments Act — G.L. 2887, Subd. VI — Determination of Capacity in Which Person Intended To Sign Note When Doubt Arises from Ambiguous Location of Signature on Instrument — Insufficiency of Circumstances of Signing Apparently as Makers To Show Doubt as to Intended Capacity in Signing — Necessity of New or Additional Consideration for Party Signing Note after Its Execution and Delivery — Presumption as to Consideration — Burden of Proof of Lack or Failure of Consideration.
1. Under G.L. 2259, review by Supreme Court of case heard before superior judge in vacation to whose findings no exceptions were taken, is controlled by facts found.
2. Exception to judgment merely raises question whether findings support judgment, but reaches all questions involved in rendition of judgment and necessary to its validity.
3. Finding that persons signing note assumed obligation of maker, held conclusion of law and reviewable under exception to judgment.
4. Relation of persons signing note thereto is controlled by Uniform Negotiable Instruments Act, and is to be determined by note itself, and not otherwise.
5. Provision of Negotiable Instruments Act contained in G.L. 2887, subd. VI, that where signature is so placed on instrument as to make doubtful capacity in which person intended to sign, he shall be deemed indorser, applies only to case where doubt arises from ambiguous location of signature on instrument, such as at end or across face thereof.
6. Where persons signing note placed their signatures thereon in proper place for makers, but sightly to left of original makers, such circumstances alone was insufficient to make applicable provision of Negotiable Instruments Act contained in G.L. 2887, subd. VI, whereby in case signature is so placed on instrument as to make doubtful capacity in which person intended to sign, he shall be deemed indorser, and their obligation was that of makers, fact that their names were placed on note after delivery to payee not altering their legal status as makers.
7. Party who signs note after its execution, delivery, and acceptance is not liable to payee, when there was no new or additional consideration for such signing.
8. In action of contract on promissory note, defendants, signing note as makers, after execution, delivery, and acceptance, asserting in defense that there was no consideration for their signatures, had burden of establishing issue by pleadings and proof, in view of provisions of G.L. 2894 and G.L. 2898, that note is deemed prima facie to have been issued for valuable consideration, and making absence or failure of consideration matter of defense as against any person not holder in due course.
ACTION OF CONTRACT on promissory note. Plea, that there was no consideration for signatures of defendants, and that they signed other than as makers. Trial before Davis, Superior Judge, in vacation after the December Term, 1931, Windsor County. Judgment for the plaintiff. The defendants excepted. The opinion states the case. Affirmed.
The note in suit being a negotiable instrument is controlled by the Negotiable Instruments Act, and under such act the defendants were indorsers. Grapes v. Willoughby, 93 Vt. 458, 460, G.L. 2887, subd. VI, G.L. 2932, 8 C.J. 85, 76.
An indorser's engagement is to pay provided the paper is seasonably presented to maker, and he is seasonably notified of the latter's default, and to charge indorser of overdue note, demand must be made and notice given as if note became due on the date of indorsement. Grapes v. Willoughby, supra; Brannan's Negotiable Instruments Law, 5th ed., page 716; Landon v. Bryant, 60 Vt. 203, 204; Foundry Mfg. Co. v. Farr, 96 Vt. 382, 386.
One signing note as joint maker after delivery is liable only as an indorser, and Negotiable Instruments Act does not merely raise a presumption that he is an indorser, but his status to the instrument is absolutely fixed by it and cannot be changed by parol proof. Colvin v. Glober, 143 Ark. 498, 220 S.W. 832; Lightner v. Roach, 95 A. 62.
An indorsement is usually made on the back of the instrument, but this is not essential, and it may be made on the face of the instrument. 3 R.C.L. 969; Merchant's Natl. Bk. v. Raesly, 56 A.L.R. 230; Story on Promissory Notes, 6th ed., § 121; Daniels on Neg. Inst. Law, 6th ed., § 688; Annotation, L.R.A. 1918D, 966; State Bank v. Penello, 210 P. 432, 436; Overland Auto Co. v. Winters, 180 S.W. 561, 566; Slain v. Sullivan, 106 Cal. 208, 39 P. 606; State Bank v. Penello, 210 P. 432.
Person signing note after delivery by original maker and completion of transaction is not liable without independent proof of a new consideration, such consideration not being presumed. Sawyer v. Fernald, 59 Me. 500; King v. Wise, 282 S.W. 570; Hiatt v. Hamilton, 243 N.W. 578; Cripple Creek State Bank v. Tulleston, 202 P. 115; Gursky v. Rosenberg, 287 P. 575, 8 C.J. 211-212, 250; North v. North, 235 N.W. 483; Persia Savings Bank v. Wilson, 243 N.W. 581; Daniels on Neg. Inst. 6th ed., § 67A; 3 R.C.L. 1131, § 345.
An exception to the judgment reaches every question involved in the rendition thereof and necessary to its validity, and whether facts are sufficient to support the judgment. Morgan v. Gould, 96 Vt. 275, 280; Eddy Company v. Field, 85 Vt. 188; Farrant v. Bates, 60 Vt. 37, 45.
Conclusion of trial court in his findings "that defendants assumed the obligations of makers thereon" is a conclusion of law, and the question as to the legal validity of this conclusion is reached by the exception to the judgment, since it is a question involved in the rendition thereof and necessary to its validity. 2 R.C.L. 208; Weigell v. Gregg, L.R.A. 1916B, 856; Schrader v. Kennedy L. P. Co., 62 A.L.R. 495, 497; Hadfield v. Tracy, 34 A.L.R. 586; King v. Buckeye Cotton Oil Co., 53 A.L.R. 1086, 1090.
The bill of exceptions states that defendants except to the judgment. No grounds for exceptions being stated, there is nothing to show that the fault found with the ruling of the trial court was indicated in any way. Therefore the Supreme Court will "pay no further attention to it." Temple et ux. v. Atwood, 100 Vt. 371, 372.
Defense of failure or lack of consideration is an affirmative defense, and the burden of establishing such defense is on the party asserting it. Harponola Co. v. Wilson, 96 Vt. 427, 432, 433.
The defendants admit the signing of the note in suit and the court in its findings found that they had signed it. Therefore, prima facie, the note was for a valuable consideration, and the burden of proving to the contrary was on the defendants. Alexander v. Chevalier, 98 Vt. 230, 233.
The exception to the judgment does not present for review any question of the sufficiency of the evidence to support the findings, and the trial court having found that the defendants signed the note as makers, the Supreme Court is bound by such finding. Wolcott v. Mongeon et al., 88 Vt. 361, 364; Morgan v. Gould et al., 96 Vt. 275, 280; Wilson v. Barrows, 96 Vt. 344, 346.
Stanley L. Chamberlin and J. Ward Carver for the defendants.
Stickney, Sargent Chase for the plaintiff.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
This is an action of contract, in which the plaintiff declared specially upon the following promissory note:
"Secured by mortgage deed of premises in Bethel, Vermont, dated July 17, 1915."
"$3,000.00 For value received, we each as principal, jointly and severally promise to pay J.A. Greenwood or order three thousand dollars ($3,000.00) on demand with interest annually at five per cent. Bethel, Vermont, July 1, 1915.
Primus P. Lamson Warren J. Beal John W. Lamson Eugene C. Blaisdell."
The defendants answered that there was no consideration for their signatures and that they signed otherwise than as makers. There was a judgment for the plaintiff, and the defendants excepted.
The case was heard below before a superior judge, in vacation, and no exception was taken to his findings. Our review, therefore, by statutory command, is controlled by the facts found. G.L. 2259; Conn Boston Co. v. Griswold, 104 Vt. 89, 99, 157 A. 57. The only exception saved was to the judgment. This exception merely raises the question whether the findings support the judgment. Crosby's Admrs. v. Naatz, 98 Vt. 226, 229, 126 A. 547; Royal Bank of Canada v. Girard, 100 Vt. 117, 119, 135 A. 497. It reaches all questions involved in the rendition of the judgment and necessary to its validity. Morgan v. Gould, 96 Vt. 275, 280, 119 A. 517.
On July 17, 1915, Warren J. Beal and Eugene C. Blaisdell made, executed, and delivered to the plaintiff the note in suit. On October 20, 1926, while the note was in the possession of the plaintiff, the defendants signed their names upon the face thereof, and slightly to the left of the signatures of the original makers. There is a finding that there was no evidence as to the circumstances under which the defendants signed their names, whether with or without the knowledge of the original makers, and that there was no evidence either way whether any consideration or benefit was received by the defendants from the plaintiff, or anyone else, for signing the note, and no evidence of demand and notice of dishonor sufficient to charge the defendants as indorsers.
"Upon the foregoing facts," the findings state, "it is my conclusion that the defendants by signing said note assumed the obligation of maker * * *."
We agree with the defendants that the above quoted finding is a conclusion of law and is reviewable under the exception to the judgment. The relation of the defendants to the note is controlled by the Uniform Negotiable Instruments Act (chapter 140 of the General Laws), and it is to be determined from the note itself, and not otherwise. Grapes v. Willoughby, 93 Vt. 458, 460, 108 A. 421; Alexander v. Chevalier, 98 Vt. 230, 234, 126 A. 498.
On the facts found from the note as an exhibit in the case we must test the conclusion that the defendants signed as makers, and not as indorsers. The defendants' contention that they signed as indorsers is founded upon section 17, subd. 6 (G.L. 2887, subd. VI). That subsection provides: "Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser."
This provision, in terms, applies only to a case where a doubt arises from the ambiguous location of the signature upon the instrument, such as at the end or across the face of the instrument. It was intended to solve such a doubt, and no other. Germania Nat. Bank v. Mariner, 129 Wis. 544, 109 N.W. 574. These defendants signed their names in the proper place for a maker, and the only thing indicated which is at all unusual (if such it may be called) is that they placed their signatures "slightly to the left of the signatures of the original makers." But this circumstance, alone, does not create such a doubt as is contemplated by the statute. Bank of California v. Starrett, 110 Wn. 231, 188 P. 410, 9 A.L.R. 177. It was held in this case that one who places his name at the left side of the bottom of a note, instead of at the right, signs as a maker rather than as an indorser. The fact that the defendants placed their names on the note after its delivery to the payee does not alter their legal status as makers. See Lyndon Savings Bank v. International Company, 78 Vt. 169, 177, 178, 62, Atl. 50, 112 A.S.R. 900; and Thomas v. Hoebel, 46 Idaho 744, 271 P. 931, 932.
The conclusion that the defendants by signing the note assumed the obligation of makers was clearly correct.
It is a settled and well-recognized rule that a party who signs a note after its execution, delivery, and acceptance is not liable to the payee when there was no new or additional consideration for such signing, either in the form (1) of some advantage to some of the signers, or (2) of some disadvantage to the payee, or (3) of an agreement, at the time of the original execution and delivery, that the note would be so signed. Persia Sav. Bank v. Wilson, 214 Iowa, 993, 243 N.W. 581; King v. Wise (Tex. Com. App.), 282 S.W. 570. The defendants, by their answer, invoke this rule of law, but they have introduced no evidence to sustain the allegation. They contend that the burden was upon the plaintiff to establish a new consideration. But the argument misconceives the express provisions of the Negotiable Instruments Act. By section 24 of the Act (G.L. 2894) the note is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value, and section 28 of the Act (G.L. 2898) provides that absence or failure of consideration is matter of defense as against any person not a holder in due course. These provisions of the Act expressly cast upon the party asserting absence or failure of consideration the burden of establishing the issue by pleadings and proof. Harponola Company v. Wilson, 96 Vt. 427, 433, 120 A. 895; Alexander v. Chevalier, 98 Vt. 230, 233, 126 A. 498; Niles v. Rexford (decided, October Term, 1933), 105 Vt. 492, 168 A. 714. See Browne v. Fine, 104 Vt. 221, 228, 158 A. 669. Sections 24 and 28 (G.L. 2894 and 2898) do not make any distinction between signers before delivery and signers after delivery. We read them as they are written, and hold that the rule as to burden of proof of the issue of absence or failure of consideration applies with equal force to a person who signs the note after its delivery.
Other courts, since the adoption of the Act, have, apparently, taken the same view. See Thomas v. Hoebel, 46 Idaho, 744, 271 P. 931; Nolte v. Nolte, 211 Iowa, 1289, 235 N.W. 483; and Sangster v. Bricker, 66 Ind. App. 409, 118 N.E. 383.
On the facts found, there was no error in the judgment, and it is affirmed.