National Bank of Commonwealth v. Law

Gray, C. J. It is unnecessary to consider whether, according to the decisions of this court upon promissory notes made before the St. of 1874, e. 404, took effect, the defendants, by reason of their signature having been placed upon the back of this note before its delivery to the payees, would have been deemed original promisors and jointly liable with the maker whose name appears upon the face of the note ; because by this statute it is enacted that “ all persons, becoming parties to promissory notes payable on time, by a signature in blank on the back thereof, shall be entitled to notice of the non-payment thereof the same as indorsers.” Parties to a promissory note, who are entitled to notice of non-payment thereof by the maker, cannot be charged until he has failed to pay the note according to his contract; their liability 75 depends on different facts and conditions, and is therefore necessarily several and distinct from his, and is, at the inception of the contract, a conditional and secondary, and not an absolute and primary liability. One partner has no authority, without the assent of his copartners, to sign the name of the partnership to a note for the individual debt of himself or of a stranger; and all persons who take such a note with knowledge, either from its appearance or otherwise, that it was made for the separate accommodation of one partner or of another person, cannot recover against the other partners without proving their authority or assent. In the present case, the defendants’ name being upon the back of the note above that of the payees, it was apparent upon the note itself, read in the light of the statute, which every one was bound to know, that the liability of the partnership was but conditional and secondary, and therefore that, prima facie at least, their signature was affixed for the accommodation and benefit of Law; and the ruling at the trial was correct. Angle v. Northwestern Ins. Co. 92 U. S. 330. West St. Louis Savings Bank v. Shawnee Bank, 95 U. S. 557. Chazournes v. Edwards, 3 Pick. 5. Sweetser v. French, 2 Cush. 309. Rollins v. Stevens, 31 Maine, 454. Fielden v. Lahens, 2 Abbott N. Y. App. 111. Lemoine v. Bank of North America, 3 Dillon, 44. Judgment on the verdict.