Davis v. Solomon , 101 Conn. 465 ( 1924 )

The questions presented upon this record relate to the admissibility of certain evidence offered by the defendant.

The plaintiffs allege, in the first paragraph of the complaint, that the maker of the note delivered the note to the defendant, the payee, and that the defendant (payee) then duly indorsed it; and in the second, third and fourth paragraphs they allege that after such indorsement the maker, with the note in its possession, secured the indorsement of the plaintiffs for its accommodation, and that then it secured the discount of the note by the Trust Company. The allegations that the maker had this note in its possession with the payee's indorsement upon it, was equivalent to an allegation of notice to the plaintiffs and the Trust Company that the payee's indorsement was an accommodation indorsement.Oppenheim v. Simon Reigel Cigar Co., 90 N.Y.S. 355. The defendant in his answer alleged that he was an accommodation indorser upon the note and that the plaintiffs were also accommodation indorsers; thus the allegations of complaint and answer agree as to this feature of the relations of the parties to the note.

The defendant in his answer further alleged, in substance, that the plaintiffs and the defendant agreed between themselves to indorse the note as accommodation indorsers and to become jointly liable in case the note was not paid by the maker. This allegation the plaintiffs denied.

It is the law that "in the absence of an agreement to the contrary, as between themselves, successive accommodation parties are liable in the order in which their names appear, even though later signers knew that prior parties signed for accommodation." (General Statutes, § 4426, Negotiable Instruments, Law, § 68.) Brannan's Negotiable Instruments Law (3d Ed.) p. 117; Crawford's Negotiable Instruments Law (3d Ed.) p. 92;Noble v. Beeman-Spaulding-Woodward Co., 65 Or. 93,131 P. 1006, 46 L.R.A. (N.S.) 162. The common law of this State is the same. Kirschner v. Conklin,40 Conn. 77.

The defendant, in attempting to prove the above further allegations of his answer, offered to prove what Shalett had said to him prior to his indorsement of the note about an agreement which Mr. Keefe and Mr. Davis had made regarding the liability of the three accommodation indorsers. Upon objection this evidence was excluded and an exception taken.

The statements claimed to have been made to Solomon by Shalett in the absence of the plaintiffs, and without proof connecting Keefe and Davis with the making of any such agreement, were mere hearsay statements as to the existence of such an agreement.

There were no such offers of further proof accompanying the statements offered as would justify the court in admitting them.

The question is not involved in this case whether Shalett secured the indorsement of Solomon by false representations as to what his liability would be, nor was any offer made by the defendant to prove that Keefe and Davis had in fact made any such agreement.

By the terms of the note, as we have stated, the defendant, a prior indorser, would be liable to the plaintiffs. The defendant claims that this apparent liability was changed. As was said in Hagerthy v. Phillips,83 Me. 336, 337, 22 A. 223: While oral evidence is admissible to prove that the accommodation indorsers have agreed to be jointly liable, the proof "should be clear and satisfactory, inasmuch as there is easily a temptation to attempt to pervert the truth in such a matter, and the note is itself strong evidence that it represents the contract correctly. The burden of proof lies heavily upon" the party alleging such an agreement.

There is no error.

In this opinion the other judges concurred.