Winders v. Sperry

Temple, C. — This appeal is taken by defendant Charles E. Sperry from the judgment and from an order refusing a new trial.

[195]The action is by the indorsee of a non-negotiable note against the two makers, and the appellant separately defended on the ground that his contract was without consideration.

The trial was by the court, which found for the plaintiff. On only one important point is there a conflict in the evidence. Resolving that as we are bound to in favor of the decision, we have this state of facts: E. N. Sperry, being without credit, but desiring to borrow some money from Charles Sperry, who was his nephew and son-in-law, told Charles that he had spoken to his son —, the appellant—in regard to the matter, and that his son said if he, Charles, would loan the money to him, E. JST., the son would be responsible for the payment of it, and would sign the note as joint maker. Thereupon Charles gave E. N. his check for the amount, and took a note signed only by E. N., but in form joint and several, reading. “ We, or either of us, promise to pay,” etc. Charles knew when he loaned the money that E. N. was not able to pay, and told him then that he looked wholly to appellant for payment. E. N. Sperry, when the note was taken by Charles, said that his son would be down soon, and as Charles Sperry testified: “ I said perhaps you had better take this note, you will see him before I will, and he said, ‘ No, you had better take it and send it up there,’ and I sent it up the next day, I think.”

As matter of fact, E. N. Sperry had never spoken to his son in regard to the matter, and appellant knew nothing of the loan until he received a letter from Charles, the contents of which do not appear further than indicated by the reply of appellant, which was as follows:—

Ceres, Sept. 22, 1888.

“ Brother Charles,—Received your letter this morning, and say in reply that I think it will be all right. Send note up, and I will sign it and send it back.

“ Respectfully,

“ C. E. Sperry.”

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