On appeal from the Essex County Circuit Court.
For the appellants, Kanter & Kanter.
For the respondent, Wolber & Gilhooly (John H. Yauch, Jr., of counsel).
The opinion of the court was delivered by
KALISCH, J. This is an appeal from a judgment entered in the Essex County Circuit Court in favor of the plaintiff below against the defendants below. The plaintiff brought its action against the defendants to recover the amount due on a promissory note, payable to the order of one Meyer Gendel. Before the maturity of the note, it was endorsed by William D. Decker and Meyer Gendel, and by the latter was discounted in the plaintiff bank. The note was signed by the Decker Building Material Company, by William D. Decker, president. Upon the failure of the defendants, or either of them, to pay the note on the due date, the note was duly protested and notice of the dishonor of said note sent by the notary to the endorsers.
To the plaintiff's complaint the defendant Decker Building Material Company filed an answer in which it admits that it is the maker of the note but says that said note was executed and delivered contemporaneously with a certain contract made between it and one Meyer Gendel, whereby the latter agreed to complete all the work which he had undertaken to perform, in which the Decker company was interested, before September 1st, 1928, and in case of default, on Gendel's part, the latter agreed to return the note, if in his hands, and if in other hands, to pay it and release the defendant company from any liability on the note.
It is convenient to point out here that in the answer of the Decker company, to the plaintiff's complaint, it admits that it was contemplated by it, that Gendel might in the course of business dispose of the note to a bona fide purchaser for value, and thus its liability on the note would be fixed. The appellant company further admits in its answer that before the note became due it was endorsed by William D. Decker, president of the company, in his individual capacity. The appellant company in its answer denies the note was duly protested, or that it had due notice of any protest. Of course, as maker, it was not entitled to any notice of protest.
We find nothing more in the separate defenses set up by
the appellant company in its answer than a general denial of its liability on the note.
William D. Decker, president of the appellant company, filed an answer in his individual capacity. He lent his personal obligation to pay the note, by endorsing it in his individual capacity, in the event that the corporation of which he was the head failed to do so. He admits that before the note became due he endorsed the same to Gendel. He also sets up the same defense as set up by the appellant company, that there was a contract between the company and Gendel at the time the note was given, by which under certain conditions Gendel was to return the note, if in his hands, and if in other hands, to pay it, and release him, Decker, from any and all liability on said note.
This being the same kind of plea set up by the company, the comment made upon the transaction, as to the appellant company, is applicable here.
The appellant Decker further sets up in his answer as one of his defenses that due notice of dishonor of the note was not mailed to him. The other defenses set up by him are in the ...