Huntington v. Harvey

Hosmer, Ch. J. Augustus Bushnell made his promissory note to the plaintiff, the same not being negotiable; and procured the defendant to indorse it in blank. In this condition it was delivered to the plaintiff, and afterwards assigned by him to John N. Peabody. By uniform and long continued usage, in this state, as well as by repeated determinations, a blank indorsement on a note [129] not negotiable contains a warranty, that the note is due; that the maker shall be of ability to pay it, when it reaches maturity; and that it shall be collectible, by the use of due diligence. Bradley & al. v. Phelps, 2 Root 325. Swift's Ev. 342. Williams v. Granger, 4 Day 444. The holder may not write over the indorser’s name a direct and absolute promise, nor insert any special contract, repugnant to the nature of a blank indorsement, as it has always been understood; for it is not to be presumed, that the assignor, by an indorsement in blank, intended any thing more than a power of attorney with warranty, accompanied by a transfer of the money, when collected. See Bradley & al. v. Phelps, 2 Root 325. Swift's Ev. 342. before cited. The diligence before mentioned requires, that the contents of the note shall be demanded of the maker so soon as it falls due, and if it be not paid, that it shall immediately be put in suit against him, by attachment. On failure of this, the indorser is released from his responsibility. Swift's Ev. 347. The first, second and fourth counts in the plaintiff’s declaration have not declared on the defendant’s indorsement, according to its legal effect. The indorser did not contract to pay the note in question according to its tenor and effect; nor to pay it jointly and severally with Bushnell; nor that Bushnell should fulfil his engagement according to the tenor of the note. The promise averred in the first count to have been made, after the defendant was released from his indorsement, by the plaintiff’s laches, was without consideration, and of no legal efficacy; the defendant having become virtually a stranger to the note, and divested of all obligation antecedently contracted. Hummers v. Hunton, cited Hardr. 73. Loyd v. Lee. 1 Stra. 94. Tooley v. Windham, Cro. Eliz. 206, Forth & al. v. Stanton, 1 Saund. 210. 1 Roll. Abr. 26. pl. 10. In the third count, the plaintiff founds himself on a promise, in relation to the same note, made by the defendant, to John N. Peabody, in consideration of his forbearance to sue Bushnell, and after the defendant was discharged from his indorsement. To the claim on this count the objections are numerous and conclusive. In the first place, the promise was made to Peabody, not to the plaintiff, Huntington; and the plaintiff can have no ground of pretence to sue upon a contract made to another person, Secondly, the defendant was, in effect, a stranger to Bushnell's note; and his promise was entirely without considera [130] tion. Thirdly, the promise to pay the debt of another person, not being in writing, was void by the statute of Frauds and Perjuries. King v. Wilson, 2 Stra. 873. Rothery v. Curry, Bul. N. P. 281. Fish v. Hutchinson, 2 Wils. 94. 1 Saund. 211. a. Sears v. Brink, 3 Johns. Rep. 210. Peabody v. Harvey, ante. 119 It has been contended, that the promise to Peabody was, at least, a waiver of his antecedent omission to bring a suit by attachment against Bushnell. Admitting this proposition, which it is unnecessary to controvert, yet it is clearly indisputable, that a waiver is merely a relinquishment of right, but has not, in its nature, any thing prospective. By the alleged relinquishment, the plaintiff was only placed in a condition to continue the obligation of the defendant, resulting from his indorsement, by a prompt and vigorous recurrence to his legal remedy against Bushnell. Any other construction would give an interminable effect to the waiver, and render the defendant a perpetual guarantor of Bushnell's debt. At the time of the supposed waiver, Bushnell was of ability to pay the plaintiff’s demand, and so continued for about a month, when he became bankrupt. If the obligation, on the defendant’s indorsement, was revived, by his promise, considered as a renunciation of his right, by reason of the plaintiff’s former omission, the defendant was again released from his obligation, by the plaintiff’s subsequent neglect. The other Judges were of the same opinion. New trial not to be granted.