Whitaker v. Brooks , 137 S.W. 921 ( 1911 )

Appellants were sued and held liable as indorsers upon a promissory note; the plaintiff alleging as an excuse for not suing the principal obligors (1) that they resided beyond the limits of the state; and (2) that, if such was not the fact, then their residences were unknown to the plaintiff or his attorneys, and could not be ascertained by the use of reasonable diligence.

We uphold appellants' contention that the proof fails to sustain either of the allegations referred to in reference to the residence of the principal obligors. The plaintiff did not testify in the case, and it was not shown by satisfactory proof that the makers of the note resided beyond the limits of the state; and there was not a vestige of testimony showing that their residences were unknown to the plaintiff in person, or that he had exercised any diligence in that regard. Both of the attorneys who represented the plaintiff testified as to certain efforts made by them to ascertain the residence of the makers of the note, including a statement made by W. F. Whitaker, one of the appellants, to the effect that he thought that the makers of the note lived in Knowles, N.M., and, if they were not there, he did not know where they were. Neither of the attorneys stated as a positive fact that he did not know the residence of the parties referred to. But, if such testimony had been given by the attorneys, it would not have been sufficient, because, in order to entitle him to a judgment against the indorsers upon the note without suing the principal obligors, the burden rested upon the plaintiff to allege and prove that the residences of such obligors were unknown to him, and could not be ascertained by reasonable diligence on his part.

For the error pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.