#### H. G. SPRINGS v. J. W. McCOY et al.

Action for Money Paul at Request of Defendant — Note—Payment by Accommodation. Endorser — Implied Promise to Repay.

Where plaintiff, at the express request and for the benefit of defendants, endorsed a note executed by a third person for the benefit of, but not payable to, defendants, and, upon the insolvency .of the makers, plaintiff was compelled to pay the note under a judgment thereon against him, the law will imply a promise by defendants to repay him.

Civil actiuN, tried before Norwood, J., and a jury, at March Term, 1897, of MeoicleNbubg Superior Court.

The plaintiff tendered the following issue, which .was adopted by the court:

“Are the defendants indebted to the plaintiff, and, if so, what is the amount of the indebtedness?”

The plaintiff offered in evidence a note signed by E. F. McCoy andJB. L. Wedenfeller, payable to W. B. Gooding, city tax collector, for $250 due October 1, 1895, endorsed by the plaintiff, H. G. Springs.

The plaintiff offerel himself as a witness, and plaintiff’s counsel stated that they proposed to show by the witness that the defendants, J. W. McCoy and A. R. Bowles, were partners, and that J. . W. McCoy was the managing partner; that J. W. McCoy brought said note to the plaintiff, Springs, and told him that the.note was given to secure a debt due by the co-partnership, and ashed him to sign the note for the benefit of the firm of J. W. McCoy and A. R. Bowles, the defendants in this action; that plaintiff did so sign it at the request of the said McCoy, and solely for the benefit of the partnership business; that the note was thereafter used for the benefit of the partnership by being delivered to the city treasurer to secure the license tax of *418defendants; that thereafter plaintiff was sued upon this note, and judgment was taken against him, and plaintiff was compelled to pay and did pay that judgment; that when plaintiff approached A. R. Bowles, one of the defendants in this suit, in regard to paying this debt, said Bowles said that it was a partnership debt, and that his partner ought to have paid it out of partnership funds which he had had in his hands, hut which he had converted to his individual purposes in paying for a lot for himself; that plaintiff has made a demand of payment on the partnership, and they have refused to repay plaintiff. The plaintiff also proposed to show that the signers, E. F. McCoy and B. L. Wedenfeller, are insolvent, and that this note is one of three of the same amount, given at the same time, signed and endorsed in same way, and that defendants have paid the other two.

Defendants objected to all this testimony as offered. Objection sustained and plaintiff excepted.

The court, having announced the opinion that the plaintiff could not recover upon this testimony, in deference, to the intimation of his Honor the plaintiff submitted to a non-suit, and appealed.

Messrs. Jones ds Tillett, for plaintiff (appellant).

Messrs. Osborne, Maxwell <& IOeerans and Qlarltson <& Duls, for defendants.

MoNtgombry, I.:

If there was any error committed by the court below, it is one of practice and of so slight importance and consequence that we are unwilling to remand the case for a new trial. No possible injury could have been sustained by the defendants in the matter complained of. It would have been more regular if the witness had been asked such questions as were calculated to show that *419be bad endorsed tbe note, tbe circumstances attending tbe endorsement, i. <?., that be bad endorsed it at tbe request of tbe defendants and for tbeir benefit, and bis payment of it by tbe judgment of tbe law. Tbe note could then have been proved and received as evidence of tbe endorsement and in corroboration of tbe witness. Tbis is, however, not tbe defendant’s appeal, and tbe plaintiff, of course, bad nothing to appeal from as to tbe manner of tbe introduction of the evidence because bis Honor admitted it. Tbe plaintiff’s appeal is from the judgment of non-suit taken in deference to tbe intimation of bis Honor that tbe plaintiff could not recover upon tbe testimony as received. So tbe real question in tbe case is, does tbe testimony offered and received, conceding it to be true, constitute a cause of action against tbe defendants and render them liable to tbe plaintiff as alleged in tbe complaint? We are of tbe opinion that tbe matters contained in tbe evidence, if true, make tbe defendants liable to tbe plaintiff on the cause of action set out in tbe complaint. Tbe note, though executed by other persons tüan tbe defendants, was, according to tbe evidence, made for tbe benefit and advantage of tbe defendants; it was endorsed by tbe plaintiff at tbe express request of tbe defendants.

Tbe maker of tbe note bad no interest in it at any time and received no consideration for it. Of course, tbe fact that tbe makers received no consideration would not affect tbeir liability to tbe payee, but it turned out that they were insolvent and tbe debt fell upon tbe plaintiff, who paid it after judgment was recovered against him for tbe amount. Tbe testimony, if true, showed tbe payment by tbe plaintiff was for tbe use and benefit of tbe defendants under such circumstances as that tbe law will imply a promise to repay on tbe part of tbe defendants. Burns v. Parish, 3 B. Mon. (Ky.), p. 3. Tbe judgment of non-suit is reversed and there must be a new trial. New Trial.