KINCH v. COLE

KINCH v. COLE
1928 OK 524
272 P. 1020
133 Okla. 255
Case Number: 18214
Decided: 09/11/1928
Supreme Court of Oklahoma

KINCH
v.
COLE et al.

Syllabus

¶0 Bills and Notes--Lack of Consideration for Indorsement of Note--Indorse Not Liable to Assignee.
Consideration between the promisor and promisee is an absolute essential, and where the defendant derived no benefit, and the plaintiff suffered no possible loss or detriment, the undertaking is without consideration and must be regarded as nudum pactum as between the parties thereto.

Error from District Court, Creek County; Frank Mathews, Assigned Judge.

Action by Mattie M. Kinch pro se, and as administratrix, against W. J. Cole and S. J. Smith on note. From judgment for defendant Smith, plaintiff brings error. Affirmed.

George L. Burke, for plaintiff in error.
Wallace & Wallace, for defendants in error.

RILEY, J.

¶1 This proceeding in error is a counterpart to cause No. 18315, Cole v. Kinch, 134 Okla. 262, 272 P. 1017, and the statement of facts there is considered in augmentation of the facts here stated.

¶2 A promissory note of the date of September 20, 1920, was executed by W. J. Cole and delivered to E. T. Creegan, guardian of the estate of William McKinley Clayton, minor, for a consideration of $ 2,500, paid to the maker. The due date was January 10, 1921, interest at 10 per cent. per annum. The guardian was having some trouble with the county court on account of the overdue note not having been paid and about that time, on solicitation of the guardian, defendant S. G. Smith endorsed the note as follows: "Payment guaranteed, S. J. Smith." The guardian was paid for the note and suit was entered by assignee upon the note and recovery had against the principal, and that judgment affirmed in the companion case. Judgment was for defendant Smith in the court below, from which the plaintiff appeals hereby.

¶3 The judgment below absolved Smith from liability on the note for the evident reason that there was no consideration binding upon him for his endorsement. Smith signed the note at payee's request long after maturity in consideration of the fact that payee represented that such indorsement would be an accommodation to him. Such indorsement was also in view of the fact of a pledge of six United States Liberty Bonds of the par value of $ 3,000 to secure the debt of $ 2,500 represented by the note.

¶4 From our review of the evidence, we cannot say the trial court committed error in its view that Smith was solely an indorser without consideration to himself or the maker of the note, or anyone except the payee, therefore, we affirm the judgment under the rule in First Nat. Bank of Poteau v. Allen, 88 Okla. 162, 212 P. 597.