Shenk v. Robeson

The opinion of the court was delivered May 24, 1858, by Woodward, J. — In Barto v. Schmeck, 4 Casey, 451, we classified the cases that have arisen upon such anomalous indorsements as the present, and laid down the rule of judgment, as clearly as we were capable of expressing it. Applying that rule to this case, the judgment must be reversed, for there was no count on the special undertaking of the defendant, and no evidence to sustain it, if such count had been pleaded. The court ruled that the defendant was not liable, in virtue 'of his indorsement merely, but permitted the jury to infer a collateral contract of guaranty, from evidence which we think was entirely incompetent to justify such an inference. The witness, Young, describes his interview with Shenk, but proves no declarations or promises, on the part of Shenk, which can bind him in this action. The note was indorsed to renew a former one of like tenor, but Shenk was no more liable on the first note, by reason of Ms indorsement, than he was on the second; and neither of the indorsements were accompanied with acts or declarations, from which a guaranty could be implied. In Schellenberger v. Neff, the transaction imputed an engagement to guarantee a loan. Here there was nothing of the sort. The case rested altogether on the indorsement of the defendant, and as that did not bind him to the payee, the verdict and judgment should have been in his favor. The judgment is reversed and a venire facias de novo awarded.