Roark v. Turner

— Stephens J. By the Court. delivering the opinion. [1.] We are all agreed, that there is no difficulty in sustaining this action against Roark in his two characters, as executor of the maker, and as individual endorser. The judgment goes against him in the one character, de bonis testatoris, and in the other, de bonis propriis. We cannot see how any difficulty is created by the circumstance that both characters happen to be united in the same person. [2.] Upon the other point, Judge Benning dissents from a majority of the Court. I shall not at all discuss the common law authorities on this subject, because I think the question is settled by our statute of 1826 — See Cobb’s Dig. 2?.594. That statute declares,.that “ whenever any person whatever endorses a promissory note or other instrument, he shall be held, taken and considered as security to the same, and be in all respects bound as security, until said promissory note or other instrument is paid of and discharged.” It [457] is obvious that these words make an endorser liable to the same extent as a surety. Now, a surety is a maker, and is liable to the same extent as the principal. True, he is released by some things which leave the principal bound, but while bound at all, he is bound to the same extent with the principal. As much money as the principal is bound to pay, just so much is the surety bound to pay. It becomes necessary then for the plaintiff in error to maintain that the maker of a promissory note, whether principal or surety, is bound to pay the holder only so much as the note has cost him. And this position is taken, and is based upon the idea that the promissor is not bound beyond the extent of the consideration which he receives for the promise; that when the promise is to pay one sum, while the consideration is a less sum, all of the excess is without consideration, and is therefore not obligatory; that there must be an equipoise of values whenever the nature of the case admits of an exact equality between the consideration and the promise. If the consideration on both sides was money, this reasoning might do, for in that case an exact equipoise of values might be had; but the fallacy of the reasoning when applied to other cases, consists in assuming that in such other cases, equality of values is attainable. When a man gives his due-bill for a hundred dollars in consideration of only fifty dollars which he receives cash in|hand, who can say he has necessarily made a bad trade ? There are some men who would make exactly fifty dollars by every such operation which they could get a chance to perform. There are others who would lose fifty, and others still who would probably come out about even, for their estates after death (an event which might well happen before payment of their due-bills,) would pay about fifty dollars in the hundred. A promise is a species of property, a chose in action, and has no more a fixed money value, than a horse or a negro has. The value of each is a matter of judgment. It is not pretended that the law can ascertain the exact equivalent for a horse, and how [458] can it ascertain the exact value of a promise ? I understand the rule of law to be, that the obligation of the promise is not limited by the size of the consideration (where there is any consideration at all, as there is in this case) but only by its own terms. For the reason, that the law cannot weigh the value of the promise, it leaves the parties to adjust it by their contract. Wherethere is any consideration, the contract of the parties is the law of the case, unless the contract is against law. Now, there is no pretence that it is any more against law for the maker of a promissory note to pay the sum expressed in the note, than to pay what the note may have cost the holder. Then the promise is the thing which is to control, and the promise is to pay the sum expressed in the note; not what the note may cost the holder. This is the promise of every maker, surety as well as principal, and under our statute, an endorser makes the same promise. It is binding upon all of them to the same-extent, and for the same reason; because it is their lawful contract. It Will be observed that there is no question of usury in this ease. Usury is what is .paid or promised for forbearance of day of payment; for giving day of payment; but here the endorser did not have the element of time in his contract; he simply endorsed or backed or guaranteed another’s contract as already made. The contract is confessedly untainted with usury, and is a lawful contract which binds the endorser, in the language of our statute “ till the. note is paid off and discharged.” Judgment affirmed.