Bundy v. Buzzell

The opinion of the court was delivered by Redfield, J. The note was made payable to the order of the defendant. He wrote his name upon the back of the note and delivered it to plaintiff in payment of his mortgage. The declaration charges the defendant as indorser, guarantor, and surety, in distinct counts. Prima facie he is indorser. There was evidence tending to show that defendant was also guarantor of the note. The defendant denied all knowledge of demand and notice of dishonor, which plaintiff claimed to have proved. The plaintiff offered to prove that, after the note became due, the defendant admitted his liability and expressly promised to pay the note, which was refused by the court. This, we think, was error. This testimony tended to show that defendant conceded that he had been legally charged as indorser, or that by the orig [131] inal undertaking he became guarantor of the note, or that he had waived notice. Bank of United States v. Lyman, 20 Vt. 666, 679; Blodgett v. Durgin, 32 Vt. 361; Lundie v. Robertson, 7 East, 231. II. We are inclined to think that the testimony of Cahoon, or some part of it, should have been received. He was the attorney of the plaintiff to negotiate this business; he was to surrender the plaintiff’s mortgage note in exchange for the note of the two Russells, signed by the defendant; and he says the defendant told him that “ the Russells were to sign the note, and he understood that Buzzell was to sign as surety.” If this language means that witness understood Buzzell to say that he was “ to sign the note as sui’ety,” then we think the evidence was admissible, as tending to show that the defendant’s undertaking was absolute, and without condition. But as the case is to be tried anew, we have no occasion to discuss this matter further. Judgment reversed, and case remanded.