Wagner v. Erwin ( 1930 )

COBBS, J.

Plaintiff in error sued defendants in error to recover the sum of $1,200 on the principal of a note dated January 19, 1927, bearing 8 per cent, interest per annum until maturity and past-due principal and interest bearing 10 per cent, interest per annum, and providing for 10 per cent, attorney’s fees. _ The note was signed on its face by Erwin, who answered, among other things, that he had' executed a blank note presented to him by Kuy-kendall, in which he authorized Kuykendall to fill in the face thereof the sum of $500 with the name of some one to whom he was indebted, and that Kuykendall was to sign above the name of Erwin as the maker of the note; that he did not carry out the instructions, biit inserted his own name as payee, and then indorsed the note. Subsequently, and prior to its maturity, Erwin came to plaintiff in error’s office and asked £or the extension thereon, haying full knowledge of the contents of the note. ‘

The court rendered judgment in favor of plaintiff in error, Wagner, against defendant in error Kuykendall for the sum of $1,532.72, principal, interest, and attorney’s fees, and denied recovery in favor of plaintiff in error, Wagner, against defendant in error Erwin.

The court filed his findings of fact and conclusions of law, together with a statement of facts of the entire case.

It is not denied that the note was delivered by Erwin in blank for the holder to insert the sum of $500 therein, but it is alleged that Kuy-kendall exceeded his authority of agency when he inserted the larger amount, and rendered the note void and subject to a plea of non est factum.

Here lies the contention of the parties: Was the note thereby rendered void?

The authorities are numerous that, when the maker of a promissory note leaves the amount blank and delivers it to the proper party, with instructions to fill in the amount, he is denied the right to call in question that conferred special authority and the act of filling in the note, provided it is reasonable and done without fraud; and the note so filled in will be held to stand.

We cannot say that there was any fraud in the act. The amount inserted in the note was the exact amount that plaintiff in error was attempting to secure. Of course, no consideration passed to Erwin. He was and still is an accommodation maker, and, under the facts of the case, Kuykendall was as much bound by his indorsement as though he signed his name on the face of the note as principal. The proof shows that he was the principal ob-ligor. Plaintiff in error has well-cited authorities supporting these views, but, as the law on the point is so well supported, we deem it unnecessary to cite them. .

There was no pleading that justified the trial court in rendering judgment against Wagner for the sum of $509 admitted by him that was to have been set out in the note, and that question is not now before this cqurt for adjudication. We have reached the conclusion that the trial court erred in his findings of fact and in the judgment rendered. We therefore reverse the judgment and return the case for a rehearing.