Spies v. . Gilmore

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 323 There are a few cases in the books which hold, in effect, that a written contract of one kind may be turned into a contract of a different kind, by parol proof concerning the intention of the parties; that the endorser of a promissory note may, under certain circumstances, be charged as maker or guarantor; and that the guarantor of a promissory note may sometimes be charged as maker or endorser. Although these cases stand upon no principle, it has been a work of some time and difficulty to get rid of them. The court of errors was at first equally divided on the question; but after a second argument the court decided by a pretty strong vote to uphold contracts as they had been made by the parties, instead of making new contracts for them. (Hall v.Newcomb, 3 Hill, 233, and 7 id. 416, S.C. in error, andnote, p. 426; Seabury v. Hungerford, 2 id. 80; Manrow v.Dunham, 3 id. 587, per Bronson, J.) The work was not completed until after this proceeding had been commenced, and the case had been disposed of in the superior court. It is evident from the declaration that the plaintiff expected to recover on the ground that Gilmore might be charged as maker or guarantor. But the court of errors having overturned that doctrine, the plaintiff now seeks to uphold the judgment on another ground. He insists that as Furlong, the maker, lived at Matamoras, out of this state, and out of the United States, at the time the note fell due, no demand of payment from the maker, nor notice of non-payment, was necessary for the purpose of charging Gilmore as endorser. No such exception to the general rule, which requires demand and notice, has ever been sanctioned by the courts; andTaylor v. Snyder, (3 Denio, 145,) is a case in point against the plaintiff. It is not pretended that the maker had absconded, or removed out of the state, after the note was made; nor that there had been any other change of circumstances to excuse the want of a demand. So far as appeared on the trial, the maker still continued to reside at Matamoras, in Mexico, where he resided when the note was given, as the plaintiff well knew. The only excuse which has been offered for not making demand is, that it would have been inconvenient *Page 325 to go or send to Matamoras for that purpose. It is often inconvenient to present the note for payment when the maker and holder both reside in the same state; and yet when the maker has a known place of residence, and there has been no change of circumstances after the giving of the note, mere trouble or inconvenience to the holder has never been held a good excuse for omitting the demand. And this is so, however wide asunder the maker and the holder may live. If the plaintiff wished to avoid the inconvenience of sending to Matamoras, he should have made the note payable in New-York, or got an endorsement with a waiver of demand. He has no right to change the contract which the endorser made, for the purpose of promoting his own convenience. If the demand could be dispensed with, the endorser was still entitled to notice of the default of the maker, and that the holder looked to the endorser for payment; and there is no color of excuse for omitting to give notice. The giving of it would have cost the plaintiff no trouble, beyond sending a letter by the next ship which sailed for Matamoras, where the endorser lived. The plaintiff attempted to prove that this was done; but there was a defect in the evidence. If there had been proof enough to carry the cause to the jury on that point, it would not aid the plaintiff; for the question was not left to the jury. The judge instructed them that neither demand nor notice was required by law to entitle the plaintiff to his action. The truth evidently is, that the cause was tried upon the doctrine which has since been finally exploded, that Gilmore might be charged as maker or guarantor of the note. He was in fact endorser, and nothing else; and as such he was entitled to notice I am of opinion upon both grounds, that the reversal by the supreme court (1 Barb. 158) was correct, and that their judgment should be affirmed.