Ford v. Dunn

The controlling question to be answered in this reservation is whether the item of $33,947.47, being one half of the amount of the notes with interest, issued to the Bridgeport Trust Company by the Burns Company and endorsed jointly by George Burns and Theodore B. Ford, the defendant's intestate, shall be allowed as an ante mortem claim against the estate of Theodore B. Ford, or shall be treated as a bequest to the Burns Company under the provisions of the third paragraph of the will of Theodore B. Ford. In order to arrive at a correct determination of this question, it is necessary to pass first upon the sixth question submitted to this court, that is, "are the facts set forth in paragraphs 29 and 30 in the above agreed statement of facts relevant to and admissible on the issues raised by the remaining questions submitted?" We are of the opinion that the facts set forth in these paragraphs are necessary to ascertain clearly and determine the exact nature and origin of this claim of the Bridgeport Trust Company upon the notes of the Burns Company, held by it and endorsed jointly by George Burns and Theodore B. Ford, and are therefore relevant to and admissible on the other questions to be answered by this court. It is set forth in these paragraphs as facts that during the years 1914 to 1919 Theodore B. Ford and George Burns borrowed and took from the Burns Company sums amounting to $57,785.54, and that because of these sums so taken and borrowed by Ford and Burns, the Burns Company issued its notes to the Bridgeport Trust Company during the years 1915 to 1919, amounting, with a credit deduction for a payment in 1919 of $15,000, to $53,500, being approximately the total amount borrowed and taken by Ford and Burns as stated above.

It must be without question that when the Bridgeport Trust Company accepted these notes of the Burns Company, so endorsed jointly by Ford and Burns, it had a good and valid claim against the maker and endorsers of the notes, and could recover from all jointly or either party separately. Negotiable Instruments Act, General Statutes, § 4415. "The maker and indorser of a promissory note may be sued either jointly or separately, and a judgment without satisfaction against one does not bar a suit against the other. . . . It is elementary law that the maker and indorser may be sued separately. They may also be sued jointly."German v. Gallo, 100 Conn. 708, 711, 124 A. 837. "Persons severally and immediately liable on the same obligation or instrument, including parties to bills of exchange and promissory notes, and indorsers, guarantors, and sureties, whether on the same or by a separate instrument, may all, or any of them, be joined as defendants, and a joint judgment may be rendered against those so joined." Practice Book, Rule 154, p. 277.

The Bridgeport Trust Company, therefore, had the absolute right to demand payment of the entire amount of these notes with interest, from the Burns Company, George Burns, or Theodore B. Ford, either jointly or separately, or it could demand payment of one half from one party or one half from another, as it did in the instant case. It had an unquestionable right to demand payment of the entire amount of these notes from Theodore B. Ford were he living, and it necessarily follows it could demand the same payment from his executor or administrator upon his decease. If it chose to split its claim for payment, demanding one half from Burns and the remaining one half from Ford were he alive, there certainly could be no valid objection on the part of Ford, as he was legally bound to the payment of the whole. The Bridgeport Trust Company, therefore, having a valid and unquestionable claim against Ford, were he living, of $33,947.47, had an absolute right to present the claim against the estate of Ford, and the executrix was equally bound to receive it, and as it was a valid and existing obligation of her decedent, it must necessarily be allowed. Whether Ford died testate or intestate, the obligation to pay his debt remained the same.

Under the provisions of article third of the will of the decedent, Ford, all of his interest and corporate holdings were given to George Burns, the joint indorser with the deceased upon these notes held by the Bridgeport Trust Company, provided that he, Burns, pay to the executor of Ford's estate the sum of $25,000 and personally assume all outstanding debts and liabilities of the Burns Company, for which liability might attach to his estate; excepting the payment of "those outstanding notes of The Burns Company which have been endorsed by the said George Burns and by me jointly." Then follows this language: "As to these notes, if said Burns shall elect to take my interest in The Burns Company as aforesaid, it is my will that one-half of the indebtedness thereon shall be paid by my estate and said The Burns Company saved harmless therefrom." It is agreed that Burns did elect to take the interest of the deceased, Ford, in the Burns Company, and it is the contention now of his widow, the appellant from the order allowing the administration account, that the direction in this article third that "it is my will that one-half of the indebtedness" on these notes jointly endorsed "be paid by my estate and said the Burns Company saved harmless therefrom," is a bequest to the Burns Company, and not to be treated as a claim against the decedent's estate. These provisions of the will are a specific recognition of the obligation of the testator to the Trust Company and a specific direction that if Burns paid the $25,000 and assumed the liabilities of the Burns Company, except one half of these notes, his estate should pay this amount. This direction constituted a recognition of this claim under these circumstances. There existed, therefore, a valid and binding indebtedness on the part of the decedent, Ford, to the Bridgeport Trust Company, arising out of his endorsement of the notes of the Burns Company, and his direction in his will that this indebtedness be paid by his estate cannot affect the rights of the creditor, the Trust Company. This indebtedness must be paid, whether Ford died testate or intestate, and his direction in his will that it be paid does not change or alter its legal status. Ford gave nothing to the Burns Company, as he was obligated by law to pay this indebtedness, and therefore it necessarily follows that there was no bequest to the Burns Company.

The Superior Court is advised to answer questions one and six in the affirmative, and questions two, three, four and five in the negative.

No costs in this court will be taxed in favor of either party.

In this opinion the other judges concurred.