Converse v. Victor & Prevost, Inc.

On Eehearing.

The question presented on the rehearing in this case is whether or not Harry J. Prevost and Eugene Canepa, as indorsers of the note sued upon, had knowledge of and ratified the negotiations and transactions in connection with the note that resulted in the difference between $2,649.54 and $4,501.95. *222 This point was not stressed heretofore. In our original opinion, we stated that there was not sufficient “testimony in the record to show that any of the endorsers sued on the note gave, at any time, any authority to Harry J. Prevost to pay a usurious rate of interest for monthly extensions of the note.” On a re-examination of the record, it appears that Harry J. Prevost carried on the negotiations for the monthly extensions of the note and that Eugene Canepa, as president of Victor & Prevost, Inc., signed and delivered the checks in payment of the usurious interest. They were fully apprised of all of the details of the matter, and as indorsers consented to the extensions and rate of interest charged. They are therefore liable. But the other indorsers, who did not authorize or even have knowledge of the extensions and rate of interest charged, are not liable.

Due to the fact that the indorsers failed to appeal from the judgment of the trial court in the' sum of $2649.54, we are powerless to change the judgment as to those indorsers who did not have knowledge of the extensions, but, as to the increase in the amount which we allowed in the original judgment, we conclude that the plaintiff is not entitled to an in solido judgment against the indorsers, except Harry J. Prevost and Eugene Canepa, because those two indorsers consented to the extensions.'

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be amended by increasing the principal amount from the sum of $2,649.54 to the sum of $4,501.95, against the defendants, Victor & Prevost, Inc., Harry J. Prevost, and Eugene Canepa, in solido, with interest at the rate of 8 per cent, per annum from June 16, 1931, until paid, and 10 per cent, attorneys’ fees on the amount of principal and interest, and that the judgment, as amended, be affirmed; the cost of the appeal to be paid by Victor & Prevost, Inc., Harry J. Prevost, and Eugene Canepa.