Eilbert v. Finkbeiner

The opinion of the court was delivered, by Sharswood, J. Nobody ever doubted that when a man puts his name on the back of negotiable paper before the payee has endorsed it, he means to pledge, in some shape, his responsibility for the payment of it: Kyner v. Shower, 1 Harris 446. This court finally settled that in the absence of legal evidence of any different contract, he assumes the position of a second endorser; and that to render his engagement binding as to any holder of the note the implied condition that the payee shall endorse'before him must be complied with so as to give him recourse against such payee: Schafer v. The Farmers’ and Mechanics’ Bank, 9 P. F. Smith 144. Prior to January 1st 1856, when the Act of April 26th 1855, Pamph. L. 308, went into effect, it could have been shown by parol evidence that the intention of the irregular endorser was to guarantee the payment of the note to the payee: Leech v. Hill, 4 Watts 448 ; Taylor v. McCune, 1 Jones 460. The Act of 1855, by providing that no action shall be brought “ whereby to charge the defendant upon any special promise to answer for the debt or default of another, unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some other person by him authorized,” made parol evidence of such a guaranty unlawful: Jack v. Morrison, 12 Wright 113. But surely under the statute a memorandum in writing signed by the party is admissible to show that the agree- • ment upon which the endorsement was made was a guaranty that the note should be paid to the'payee; and not that the payee should stand between the endorser and ultimate responsibility. Now the letters which were offered in evidence and rejected by the court were clearly of this character. They were addressed to Eilbert the payee, and acknowledged the writer’s liability to him on the loan which he had made to his son Henry, the maker of the note, on July 19th 1867, which is its date; so that the identity of the transaction referred to with the note in suit is beyond all doubt. He promises to pay if Henry does not. Had these letters been addressed to a subsequent holder, it might have been supposed that the acknowledgment of liability was a mistake in law, since without Eilbert’s endorsement he would not be liable [248] to such subsequent holder. But the acknowledgment here being to Eilbert, the payee, there could have been no mistake. He admits a liability to Eilbert, the payee, himself, which is entirely inconsistent with the notion that he had put his name on the back of the note upon condition that Eilbert should take the position of first endorser. Moreover these letters contain a promise to pay upon the consideration of forbearance — not to cause any further costs; and as an independent original contract would have been admissible under the special declaration, and would have entitled the plaintiff to a verdict unless some defence were made out. There is nothing in the 2d assignment of error. The plaintiff could not give evidence of the contents of a letter mailed by him to the defendant, without having first given him notice to produce it. As to the 3d error assigned; the plaintiff was clearly an incompetent witness against the administrator defendant; nor was the evidence at all material, for surely the possession and production by the plaintiff of the letters was quite enough to show that they had been received. The offers referred to in the 4th and 5th assignments were of parol evidence to prove what was clearly a promise to pay the debt of another, and therefore inadmissible under the Act of 1855. Judgment reversed, and venire facias de novo awarded.