| 25 Ky.L.Rptr. 1809 |
|---|
| Court of Appeals of Kentucky. |
| WM. DEERING & CO. v. VEAL. |
| Feb. 24, 1904. |
| ACTION: Reversed. |
Appeal from Circuit Court, Bell County. "Not to be officially reported." Action on a note by Wm. Deering & Co. against Elenora Veal. Judgment for defendant. Plaintiff appeals. HOBSON, J. Appellant brought this suit against appellee on the following note: "$326.14. October 3, 1888. "On or before the 1st day of March, 1889, for value received, I, the undersigned, of section -- Township --, State of Kentucky, promise to pay William Deering & Company, or order, three hundred and twenty-six 14/100 dollars with interest at six per cent. per annum from date until paid. "The endorsers, signers, sureties and guarantors severally waive presentment for payment, protest and notice of protest and notice of non-payment of this note and diligence in bringing suit against any party to this note, and agree that time of payment may be extended without notice or other consent and without affecting their liability. "-- "Elenora Veal. "--." In the first paragraph of her answer she pleaded that the note was executed without any consideration. The second paragraph of her answer is in these words: "Defendant alleges that, about two years prior to the date and time when said note is alleged to have been executed by this defendant, the plaintiffs did enter into a contract with and sell to one James Veal a self-binder reaper, for the amount as stated in said note and plaintiff's petition; that it was for the price of said reaper which was sold and credited to said James Veal for which said note was executed by this defendant; that this defendant never bought said reaper or anything else from plaintiffs, and never had any other transaction with or received any consideration from plaintiffs, but that at the time she signed and executed said note it was understood and agreed by the plaintiffs and this defendant that defendant was only to be surety for said James Veal on said note for the purchase price of a reaper which the said Veal had bought from said plaintiffs and owed them for; that said note became due and payable March 1, 1889; that the defendant is surety to James Veal in the said note sued on and that the cause of action set forth in plaintiff's petition did not accrue within seven years before the commencement of this action." The plaintiff demurred to the answer, and, the demurrer being overruled, filed a reply controverting its allegations. The proof for the plaintiff on the trial showed that on September 1, 1886, Elenora Veal and James Veal, who were then residing near Lexington, Ky., executed to William Deering & Co. two notes, each for $106, due September 1, 1887, and December 1, 1887, respectively; that on September 19, 1887, James Veal and Elenora Veal executed to it another note for $90, due in one year, and on November 4, 1887, executed a fourth note for $50, due October 1, 1888; that, after the four notes fell due, certain sums were paid on them, and on October 3, 1888, the balance due on them aggregated, in all, $326.14; that she then executed her individual note sued on for the amount, which was accepted by William Deering & Co. in satisfaction of the four old notes, she claiming to be on the point of selling some land, and agreeing to turn over as security for the note a $900 purchase money note for the land which she expected to sell, but that this she afterwards failed to do. The defendant stated on her own behalf on the trial as follows: "Two gentlemen came down to our place one morning to have me sign a note with Mr. Veal, as surety. Mr. Veal did not sign it, for some reason. He told me that he wanted me to sign it as surety. Q. Where was it that you signed this note? A. I signed it in my own home. Q. Where were you living then? A. In Fayette county, Kentucky. Q. This note was executed for a self-binder? A. Yes, sir. Q. Did you sign any other notes prior to this note? A. No, sir; I had not myself. Q. Had you ever signed any other notes that were made to them? A. No, sir . Q. Did Mr. Veal, when he brought you this note, tell you for what it was executed? A. Yes, sir; self-binder. Q. You remember the circumstances of your husband having bought a self-binder from William Deering & Co.? A. Yes, sir. Q. How long prior to the execution of this note? A. In the summer of that year. Q. You had not bought any machinery from them yourself? A. No, sir. Q. Any other property? A. No, sir. Q. Ever obtain anything of value from either of this firm? A. No, sir. Q. Ever have any business transaction with them, other than the one you have just stated? A. None at all. Never was in their office." On cross-examination her attention was called to the form of the note, and she said: "A. The note was drawn up for Mr. Veal. He was to be the undersigner. Q. Mr. Veal did not sign it? A. I suppose that is his neglect. Q. There is no one's name but your own? A. I signed it where it should be--in the proper place. Q. Any one sign it but yourself? A. I supposed my husband would sign it when he took it back to the men." She denied that the four old notes were surrendered when the note in suit was given, or that she agreed to give as collateral the purchase-money note of $900 for the land, but said her husband purchased a self-binder, and that the note in suit was given for it, and was the only note she signed. On this evidence the court refused to instruct the jury peremptorily to find for the plaintiffs, and instructed them as follows: "(1) Gentlemen of the jury, if you believe from the evidence the note described and mentioned in plaintiff's petition as having been executed and delivered by the defendant to the plaintiff was executed without consideration, you will find for the defendant. "(2) If, however, you believe from the evidence in this case that the defendant signed this note as surety and with the understanding that that was the proper place to sign on the first line above, as it appears, and that she did sign the same as surety only, and not as her personal obligation; that more than seven years have elapsed since the maturity of this note before the institution of this action--you will find for the defendant. "(3) Unless you so believe, you will find, as stated in instruction No. 1, for the plaintiff the amount of note sued on." To constitute a sufficient consideration for a contract, it is not necessary that the promisor receive a benefit from it. A consideration may be something beneficial to the promisor, or disadvantageous to the promisee. A release of a legal right by the promisee is a sufficient consideration to support a contract. Bishop on Contracts, �� 61-63. If the four old notes were settled by the note in suit, or if no notes had been given for the binder, and the note in suit was executed therefor, it is not without consideration. For if, the next day, Deering & Co. had sued James Veal for the price of the binder, he could have answered that the plaintiff had accepted the note of Elenora Veal, due the following March, for the debt, and this would have defeated the action. The relinquishment of the cause of action against James Veal was a sufficient consideration to support the defendant's promise. On the undisputed facts, therefore, the note was not without consideration. By section 2514, Ky. St. 1903, an action on a written obligation for the payment of money must be commenced within 15 years after the cause of action accrues. By section 2551, a surety in such an obligation shall be discharged from all liability thereon when 7 years have elapsed without suit after the cause of action accrues. A surety is one who contracts for the payment of a debt in case of the failure of another person who is himself principally responsible for it, or, as it has otherwise been expressed, a surety is a person who, being liable to pay a debt, is entitled, if it is enforced against him, to be indemnified by some other person, who ought himself to have paid it before the surety was himself compelled to do so. Appellee was not surety for any one on the debt sued for. It was her debt. No one else was bound to William Deering & Co. for the debt, except appellee, after the note in suit was accepted. By the statute now in force, a married woman cannot bind her estate for the debt of another unless it has been set apart for that purpose by a mortgage or conveyance. But the note in suit was given before this statute was passed. The defendant did not plead her coverture. If a surety signs a note, and places it in the possession of the principal under his promise to procure another to sign it before its delivery, and he, in violation of his promise, delivers the note to the payee, who is ignorant of the arrangement, the surety is bound, notwithstanding the fraud of the principal. But the surety so signing is not bound if the agreement between the principal and surety is known to the payee when he accepts the note. When appellee signed the note at the request of her husband, and gave it to him, she made him her agent to deliver the note, and she is bound by the representations which he made as her agent. The fact that her name appeared on the second line and not on the first line for signatures to the note was not sufficient to put appellant on notice of any infirmity in the paper, for notes and contracts are often signed in this way. But this defense also was not pleaded. The court therefore erred in refusing to instruct the jury peremptorily to find for the plaintiff. Judgment reversed, and cause remanded for further proceedings consistent herewith. Ky.App. 1904. WM. DEERING & CO. v. VEAL. 78 S.W. 886, 25 Ky.L.Rptr. 1809 |
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