#### First National Bank of New Martinsville *v.*R. H. Leu *et al.*

(No. 7191)

Submitted April 19, 1932.

Decided May 31, 1932.

*Willis & Ball*and *A. C. Chapman,*for plaintiff in error.

*A. E. Larrich*and *E. H. Yast,*for defendants in error.

Litz, Judge :

This is a writ of error to the judgment entered upon a verdict of the jury in favor of defendants in an action by notice of motion for judgment on a promissory note for $5,000.00.

Wetzel Baking Company, a corporation, being indebted to plaintiff, First National Bank of New Martinsville, in the *385sum of $9,000.00 evidenced by six several notes executed by it as maker and endorsed by various of its stockholders, executed, as maker, and delivered to the bank a note endorsed by its stockholders, L. B. Snyder, John F. Martin, F. C. Poe, C. L. Williams, J. R. Walters, R. H. Leu, Cline A. Kirkland, J. F. Kirkland and Clark H. Kirkland, as follows:

> “$10,000.00 ' New Martinsville, W. Va.,

> March 30, 1925.

> Four months after date we promise to pay to THE FIRST NATIONAL BANK, of New Martinsville, W. Va., or order Ten Thousand and No/100 Dollars.

> Value received, negotiable and payable at the said FIRST NATIONAL BANK, having deposited with the said Bank as collateral security for the payment of this or any other liability or liabilities of ours to said Bank, due or to become due, or which may be hereafter contracted, the following property, viz:

> 1 note of $1,300.00 signed Wetzel Baking Co., by Jno. F. Martín, Sec’y and endorsed by F. E. Thomas and W. E. Wharton.

> 1 note for $2,500.00 signed Wetzel Baking Co., by Jno. F„ Martin, See’y and endorsed by F. E. Thomas and W. E. Wharton.

> 1 note for $2,500.00 signed by Wetzel Baking Co., by Jno. F. Martin, Secy., and Della Witschey, J. R. Walters, C. L. WiUiams and F. E. Thomas. Note for $500.00 signed Wetzel Baking Co., by F. E. Thomas, Pres., and endorsed by F. E. Thomas. ■

> 1 note for $1,300.00 signed Wetzel Baking Co., by Della Witschey, Treas., and endorsed by F. E. Thomas and W. E. Wharton.

> 1 note for $1,800 signed Wetzel Baking Co., by L. B. Snyder Pres, endorsed by R. H. Leu, F. C. Poe, C. L. Williams, J. R. Walters, Cline Kirkland, Jno. F. Martin, and L. B. Snyder. Note endorsed by F. E. Thomas and W. E. Wharton attached with full power and authority to said Bank to sell, assign and deliver the whole or any part thereof, or any sub*386stitutes therefor, or any additions thereto, through any Broker, or at public or private sale, at the option of said Bank, or its President or Cashier, or its or their or either of their Assigns, on the nonperformance of this promise, or the nonpayment of anjr of the liabilities above mentioned, or at any time or times thereafter, without advertisement or notice which are hereby expressly waived; and upon such sale the holder hereof may purchase the whole or any part of such securities discharged from any right of redemption. And after deducting all legal or other costs and expenses for collection, sale and delivery to apply the residue of the proceeds of such sale or sales so to be made, to pay any, either or all of the said liabilities to said Bank or its Assigns, as its President or Cashier, or its or their, or either of their Assigns shall deem proper, returning the over-plus, if any, to the undersigned. And the undersigned agrees to be and remain liable to the holder hereof for any deficiency.”

This note, executed at the instance of L. B. Snyder, president of the Baking Company, was renewed regularly after curtailments, until March 30, 1930, when the last renewal (the note sued on for $5,000, in the same form as the original) was executed by defendants, 11. H. Leu, F. C. Poe, Clark Kirkland, J. F. Kirkland, C. L. "Williams, John F. Martin and Clarence Kirkland, as joint makers; the Baking Company having gone out of business, J. B. Walters having failed to sign any renewals, and L. B. Snyder having been released from the obligation with the consent of defendants.

The main reliance of defense is that defendant executed the renewals without knowing the name of Walters had been dropped from the note. It is further contended that defendants were led to believe, because of letters from the bank addressed to them and Walters jointly demanding curtailment of the debt, that he was still a party to the note. The name of Walters was included as an addressee at the request of John F. Martin, secretary and treasurer of the Baking Company, with whom the other defendants had entrusted the duty of securing and delivering to the bank the various *387renewals. Moreover, defendants bad been advised that Walters was no longer a party to the note by letters of tbe type, following:

> New Martinsville, W. Ya.,

> October 9, 1926.

> Mr. John F. Martin,

> Dr. R. H. Lew,

> Foster Kirkland,

> Clark Kirkland,

> Cline Kirkland,

> Cleve Poe,

> 0. L. Williams,

> Gentlemen: The note of the Wetzel Baking Company comes due November 30th, $10,000.00 with each of the above endorsers. The financial statement of the company does not warrant a loan of this amount. We must therefore ask that this note be reduced at least $5,000.00 at maturity. We trust that you will give this matter your earnest attention and make the reduction' asked for as we will not continue to carry this loan for the present amount.

> Very truly yours,

> II. Koontz, Cashier.”

In view of these circumstances, this defense is without merit.

A further defense is that defendants by signing the note in question merely guaranteed the payment of the several collateral notes and are therefore not liable to suit until the bank has exhausted its remedies in an effort to collect them. As the promise of defendants is absolute, this position is also unsound.

The judgment is reversed, verdict set aside and a new trial awarded.

*Reversed and remanded.*