Bavarian Brewing Co. v. Sobocienski

30 Del. 530, 7 Boyce 530

• Court: Superior Court of Delaware
• Decided: February 14, 1920
• Docket: Summons Cases, Nos. 126, 127, 128
• Status: Published

Opinion

Heisel, J.,

delivering the opinion of the Court:

There are three cases, Nos. 126, 127, and 128, May Term, 1919, involving the same question.

The actions arebasedupon apromissory note, and are against the administratrix of one endorser and two other endorsers, severally.

The note signed by the maker, endorsed by four endorsers, was not paid at maturity, was protested, and is now in the possession of, and the suits are brought by, the original payee. The fourth endorser was not sued.

The defendants pleaded in abatement alleging that the endorsements were joint and not joint and several, and that this was further evidenced by a certain agreement in writing entered into at the time" of making the original note (of which the note sued upon was a renewal) between the makers, the endorsers, and the payee, the plaintiff in these actions. The part of said agreement relevant to the question now before us is as follows:

“And the said Alexander Sobocienski, Stanley L. Sobocienski, John Retkowski and Stanley W. Salamon, parties of the second part, agree for themselves that they will endorse the said note of the said Maryan P. Poniecki and Jennie Poniecki, his wife, for the sum of thirty-two hundred dollars as above set out, and further agree, when and as the said note or any renewal thereof became due and payable to sign, execute and deliver a renewal note to take the place of the one so falling due.”

To the plea in abatement the plaintiff demurred specially and generally, alleging as reason for his special demurrer that the truth of the plea was not verified by an affidavit.

Upon the production of the proper affidavits by counsel for defendants at the argument, the special demurrer was not pressed.

Are the defendants in the three cases now under consideration and the deceased endorser joint endorsers, or are they joint and several endorsers is the question to be determined by us.

[1] Nothing appears upon either the face or the back of the note to distinguish it from the ordinary promissory note signed by the maker, payable to the order of the payee, and signed by four persons whose names appear in succession upon the back of the note. .

Section 2707, Code 1915, being a part of the Negotiable Instruments Act, provides:

“A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor, is deemed to be an endorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity."

Under the foregoing section, there can be no question that in so far as anything appears from the note itself, the defendants are endorsers and not joint makers as they would have been under the law of this state prior to the adoption of said section.

Being endorsers they are also deemed to be jointly and severally liable under section 2712 of the Code which provides that “* * * joint payees or joint endorsers who endorse are deemed to endorse jointly and severally.”

Therefore, from the note alone, it would seem to be clear that the defendants are jointly and severally liable.

[2] The agreement set up by defendants in their plea in abatement, we think, does not change the nature of their liability from joint and several endorsers as determined by the note, to joint endorsers, as claimed by them.

Their obligation in the agreement is that “they will endorse the said note,” etc. Under our statute this obligation to endorse is itself, joint and several, and it seems to us to have little or no effect in determining whether the endorsements in question are joint or joint and several.

Section 2628 of the Code provides:

“An obligation, or written contract, of several persons, shall be joint and several, unless otherwise expressed.”

We are of opinion that the defendants were joint and several endorsers, that the demurrer should be sustained, and so order.