Roberts v. Byars

276 S.W. 839, 210 Ky. 788, 1925 Ky. LEXIS 779

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: October 27, 1925
• Status: Published

Opinion

Opinion op the Court by

Commissioner Hobson

Affirming.

Henry Roberts owed Walton Byars in October, 1922, $539.12. Byars needed tbe money and finally it was arranged that Roberts would give Walton Byars bis note, due in ninety days, with Gr. H. Byars as surety, and to secure Gr. H. Byars as bis surety in the note that be would execute a mortgage to O. H. Byars on ten acres of strawberries be bad growing. Tbe note and tbe mortgage were executed. Gr. H. Byars, instead of writing bis name under tbe name of Roberts on tbe face of tbe note, wrote his name on tbe back of it. Walton Byars took the note to tbe bank at Adairville where the parties lived; tbe bank cashed tbe note; Roberts failed to pay it at maturity. G-. H. Byars paid it and tbe bank assigned tbe note to him. After this Roberts brought this suit against Gr. H. ■Byars, alleging that the consideration for the mortgage had failed, in that Byars had not signed the note as surety and asking that the mortgage be cancelled. Byars by answer and counterclaim prayed the enforcement of the mortgage. The circuit court gave judgment in favor of Byars. Roberts appeals.

The note concludes with these words: “And the drawers, endorsers and all parties interested, severally waive notice of maturity, nonpayment, protest and notice of protest on this note.” When Byars wrote his name on the back of the note he therefore waived notice of dishonor. Under the statute the signature of the endorser without additional words is a sufficient endorsement, and thereby he engaged that he would pay the amount thereof to the holder. Kentucky Statutes, section 3720-B, subsections 31, 66. As notice of dishonor was waived there was no substantial difference between his obligation under the statute, when he wrote his name on the back and what it would have been if he had signed his name under Roberts ’ on the face of the note. In fact Roberts’ rights were in no wise prejudiced. The parties made the transaction with the view to the bank’s.taking the note. The bank did take it. Byars, when the note was not paid, had to pay it and only discharged his legal liability when he did pay it. The mortgage was therefore properly enforced.

It is urged that the court improperly ordered certain money to be paid into court; but this did not prejudice appellants, and the party who was ordered to pay the money is not complaining.

Judgment affirmed.