Mulcare v. Welch

Knowlton, J. To the holder of the note when it first took effect as a contract, the liability of L. Simon and Company was that of makers; the liability of the plaintiff was that of an original promisor, who could be charged only by a demand and notice under the Pub. Sts. c. 77, § 15; and the liability of the defendant was that of an ordinary indorser. Clapp v. Rice, 13 Gray, 403. As between the holder and these parties, their rights and liabilities could not be varied by paroi evidence. Prescott Bank v. Caverly, 7 Gray, 217. Their relations to each other in reference to the note can be proved by paroi, so as to show which was primarily liable for the payment of it, and whether the others as between themselves should be holden jointly or severally; and if severally, in what order. But nothing less than an actual agreement between them will change the liability imposed by law in consequence of the several undertakings shown by the note itself. If it were shown that they signed in a different order from that in which their names appear, it would not affect their legal relations to each other, in the absence of an agreement as to what those relations should be. Clapp v. Rice, 13 Gray, 403. Sweet v. McAllister, 4 Allen, 353. Woodward v. Severance, 7 Allen, 340. Shaw v. Knox, 98 Mass. 214. Brown v. Butler, 99 Mass. 179. Baldwin v. Dow, 130 Mass. 416. Mansfield v. Edwards, 136 Mass. 15. The principal question in this case is whether there was any evidence tending to show an agreement to sustain relations to [62] each other different from those resulting from their acts in placing their signatures on the note. We are of opinion that there was not. The plaintiff testified in cross-examination as follows: “I did not see Welch before this note was signed, and made no agreement with him that we were to be jointly responsible on that note. ... I never had any arrangement, understanding, or agreement with Welch as to how I and he were to become parties to the note as to signing.” His testimony in direct examination, giving the conversation between him and Robinson in regard to the defendant’s signing the note, has no tendency to show an agreement that the defendant should assume any different liability from that which would result from his signing. The only other witness on this point was Robinson, and his testimony distinctly negatives the existence of any agreement between the plaintiff and the defendant. Inasmuch as the plaintiff’s liability on the note was that of an original promisor, although chargeable only by a demand upon the other makers and a notice of their neglect to pay, while the liability of the defendant was only that of an indorser, we are of opinion that the presiding justice rightly directed a verdict for the defendant. JExeeptions overruled.