Bank v. Layne

101 Tenn. 45

• Court: Tennessee Supreme Court
• Decided: April 16, 1898
• Status: Published

Opinions

BeaRD, J.

This bill was filed, to recover a balance due on a note for $2,500, made by Max Layne as principal, and J. B. Layne and W. D. Reeves as his sureties, and indorsed by J. A. Reeves. The defendants, J. B. Layne and W. D. Reeves, having already paid to the holder two-thirds of this note, resisted recovery as to the balance, or the one-third remaining due, upon the ground that the bank had improperly released their co-defendant, J. A. Reeves, from his liability as co-surety with them, while the defendant, J. A. Reeves, defended on the ground that he was not liable at all, or, if so, that his liability was secondary and as surety of the sureties. Upon the hearing, the Chancellor rendered a decree, in which it was adjudged that J. A. Reeves was primarily bound for the amount due on this note as between him and W. D. Reeves and J. B. Layne, and that these two last named were liable after the said J. A. Reeves. W. D. and J. A. Reeves and J. B. Layne have appealed from this decree.

The facts out of which this controversy has grown, as disclosed by the record, are as follows: Upon the dissolution of a mercantile firm, of which the defendants, Max Layne and J. A. Reeves, were the members, the former became indebted to the latter in the sum of $2,500, for which amount he executed his note on February 26, 1895, to J. A. Reeves, with the defendants, W. D. Reeves and J. B. Layne, as sureties. The note was due twelve months after date, and bore interest from its date. The payee, J. A. Reeves, continued the holder of this note until February 28, 1896, when he negotiated a loan upon it of |2,500 with the complainant, at the same time making the following indorsement upon it:

“FEBRUARY 28, 1896.

‘ ‘ Commercial Batik of Union City, Tenn.:

“If you will discount this note at $2,500 as a demand note, I will take it up at $2,500, and interest, from you, on demand, with cash or a satisfactory renewal. (Signed) J. A. Reeves.”

It will be observed that the note was upon the verge of maturity at this time, and there is no doubt that it was the understanding of the bank and ’ J. A. Reeves and Max Layne, and possibly of the other parties, that it was to be taken up by a renewal note. At any rate this was done; a new note, dated March 16, 1896, for the sum of $2,500, was executed. Instead, however, of J. A. Reeves being the payee of this note, it was made payable directly to the bank, and it was signed by Max Layne, J. B. Layne, W. D. Reeves, and J. A. Reeves, the latter affixing his name immediately beneath the names of the other signers, and in this form it was delivered to the bank, whose officers accepted it as a satisfaction of its interest in the original note, which was then delivered to J. A. Reeves. When this note matured, Max Layne was unable to meet it, and arrangements were made for a second renewal.

To this end, a note prepared by Mr. Thomason, the cashier of the bank, was by him sent to Max Layne, who, after affixing his name to it, transmitted it to W. D. Reeves, at St. Louis, Missouri, for his signature, and he, having signed it, then inclosed it to Mr. Thomason in a letter, in which he stated that Max Layne had informed him that “you [Thomason] would procure the signatures of Mr. John Layne and Al [J. A.] Reeves, in connection with mine, for him.” On receipt of this letter, Thomason set about securing the names of these parties on the note, so as to complete the transaction. Mr. Thomason had at least two interviews with Mr. Layne, who seemed reluctant to sign, but finally did.

A few days thereafter, this note was presented by Thomason to Mr. J. A. Reeves, and he declined to place his name on it as one of the makers, but said he was willing to write it on the back, and thus sustain the same relation to the parties as he did by his indorsement of the original note. He further stated to the officers of the bank, that if they did not accept him as indorser with the understanding that his liability was secondary to that of J. B. Layne and W. D. Reeves, they might institute suit on the note they then held. This was finally conceded to him by the representatives of the bank, when he wrote his name on the back as indorser.

The liability of J. A. Reeves on the first' of these series of notes — that is, the note of February 26, 1895 — was clearly. secondary to that of W. D. Reeves and J. B. Layne, and, by reason of this distinct understanding with the bank’s officers, it is equally clear that his liability on the present one was also a secondary one. Nor is there any doubt that, as the bank knew that W. D. Reeves and J. B. Layne were sureties on the note of March 16, 1896, if it also knew that J. A. Reeeves was their co-surety, and permitted him to change his position on the note in controversy, so that he was placed behind them as surety for Max Layne, this act, by operation of law, would release them at least from one-third of this debt, and the Chancellor’s decree, holding them liable (after they have paid two-thirds of it), even secondarily, was error. Brandt on Suretyship, Sec. 383.

It becomes, therefore, important to determine his relation to that note. As has been before stated, his name was on the face of the paper, and was signed immediately underneath that of these two sureties. That he was surety for Max Layne is clear,' but was he also surety for . the two original sureties of Max Layne, or was he co-surety with them ? The answer to this question may be determined by looking at the facts surrounding the. transaction, and to parol proof as to the agreement of the parties. Morrison v. Lookout Mountain Hotel Co., 92 Tenn., 6; Bank v. Jefferson, Ib., 537.

It has been already stated that W. D. Reeves and J. B. Layne were the sureties for the debtor on the original note. So, when he discounted it at the bank, as between himself and the makers his liability was secondary.

The first renewal note was prepared by Thomason, the cashier in the bank, and by him was sent to Max Layne, who, having signed it, sent it to W. D. Reeves, who, after signing it, returned it to the bank, and Mr. Thomason then procuz’ed the signatures of J. B. Layne and J. A. Reeves to it.

W. D. Reeves and J. B. Layne, who were absolutely bound as sureties on the note of February 26, 1895, were then in no position to insist, that J. A. Reeves should change his relation to this debt, and become jointly bound with them as sureties on the renewal. Nor does the record exhibit any reason why J. A. Reeves should be willing to so radical a change. The bank certainly derived no advantage from this change. Whether as indorser or as co-surety he would be liable to it on the default of the principal. Neither W. D. Reeves nor J. B. Layne claim to have had any communication with J. A. Reeves as to his signing the note as a co-surety with them. What he did was at the suggestion of- the bank and after the note was in an apparently complete form. That he signed that note with the understanding on his part, as well as of the officers of the bank, that his relation to the debt and to the other parties already bound primarily, so far as he was concerned, should not be changed, we think is clear when the evidence is carefully considered. J. A. Reeves says that when he signed the note he did not intend to extend his liability beyond that incurred by him on the original note — that of indorser, while the president of the bank says his understanding was that his liability, by his signing the note, was to be the same as on the original note, and the cashier says the same thing.

It is true J. A. Reeves says he knew Max Layne, instead of paying the original, would have to execute a renewal note, and that he ‘ ‘ signed ’ ’ it at the request and for the accommodation of Max Layne, and under the requirements of the bank, yet we think it certain that he means by this statement only that he was aware that it would be inconvenient for Max Layne to pay the original note at maturity, and that for his accommodation the “witness was willing to sign or go upon a note, the proceeds of which would enable him to satisfy the demands of the bank as to the original note; and so far as the requirements of the bank were concerned, they were met when he placed his name on it so as to remain bound as on the original note. He distinctly states that he signed inadvertently at the foot of the note, but with no intention of being bound other or further than he was on the original note, and, as has already been seen, his signature was accepted there, by the officers of the bank, with the understanding that this was the limit of his liability. It is also true, Max Layne says, that, in December, 1895, he asked J. A. Reeves to become his surety on a note to the bank, to be used to raise money to pay off the note then nearing maturity, but we attach no importance to this statement, for in a popular sense, the latter would be equally the surety of the former, whether his .name was on .the back or front of the note.

Where the names of parties to a note are placed is to a degree immaterial, and when the relation of principal and surety is not expressed in the paper, it may be often implied from the ordinary legal relation of the parties in these various capacities. 2 Rand, Sec. 899.

That Max Layne was the principal, and that W. D. Reeves and J. B. Layne were, and intended to be, sureties for him was clearly expressed by them, in writing “surety” after their respective names. On the original note J. A. Reeves’ liability was secondary to that of these two sureties; he never agreed with them, or anyone else, that he would assume any other position upon the new note, and no reason is suggested by the record why he should have done so. So, when his name is found on this new note underneath that of these two parties, who have already signed, we think it might be implied that he simply undertook as surety for the preceding parties. But when there is added to this implication the testimony of the officers of the bank, that they took the note of March 16, 1896, in that form, with the understanding that the liability of J. A. Reeves was not affected by the change of position, and that of J. A. Reeves that his signature was placed on its face with the intention to be bound on the new note as he was on the original note, we think there is no difficulty in determining his liability to be secondary to that of the two other appellants.

Finding this as a fact, then it follows that W. D. Reeves and J. B. Layne have no occasion to complain, when the bank permitted him to place his name, as indorser, on the back of the note sued on, because the only effect of this act was to make his apparent correspond with his real relation to this debt.

It will be seen that we speak of the note of March 16 as a renewal note. It is immaterial whether it be treated as a strict- renewal or not, as its execution was made necessary by Max Layne’s inability to meet a note which had already matured, and was then held by the bank, and on which the liability of each party to it was then fixed.

The result is, the Chancellor was in error in decreeing that J. A. Reeves was primarily liable. A decree will be entered here adjudging that, as between W. D. Reeves, J. B. Layne, and J. A. Reeves, the two first named parties are first bound for the remainder of this note, and that J. A. Reeves is only liable after they are exhausted. The costs of the Court below will be left as they were adjudged by the Chancellor, and the costs of the appeal will be paid by W. D. Reeves and J. B. Layne.