Heintz v. Cahn

Walker, J. Defendant below filed the plea of non-assumpsif, verified by affidavit. On the trial, no evidence was introduced, of who composed the firm of A. Cahn & Co., the payees of the note. This presents the question, whether the plea of the general issue, verified by affidavit, puts that question in issue. The seventh section of the act regulating evidence has provided, that on the trial, upon contracts where the action is brought by partners or joint payees or obligees, it shall not be necessary, to maintain - his action, for the plaintiff to prove the copartnership of the individuals named, or to prove the Christian or surnames of such partners, but provides that the party may plead in abatement as heretofore, or prove on the trial, that more persons have been made plaintiffs, or that more persons ought to have been made plaintiffs, or that the Christian or surnames are different from those stated in the declaration. The plea of the general issue does not put the partnership in issue, nor does its being verified by affidavit produce that effect. The evidence clearly shows, that the makers were partners, and the partnership of appellees not having been denied by plea in abatement, and no proof showing that more parties should have been made plaintiffs, or more were made plaintiffs than should have been, no objection is perceived to their maintaining their action. ' It was also urged on the argument, that the indorsement by the guarantor having been made after the note was executed, that to render him liable, a consideration for his guaranty should have been averred and proved. Barnard Cahn testifies, that the indorsement was written on the note at the time the note waMbiade, whilst the makers state that it was indorsed in blg^K but all agree, that the guarantor’s name appeared on tlCT*e when it was first delivered to the payees. The makers Wso say that appellant refused to sign it as security, but said he would so sign it, as he would not have to pay it, unless it could not be collected of the makers. But it appears, appellees had no notice that he made this declaration. The note was delivered to them executed, without any explanation. And as the makers had promised to furnish security, the payees had a right to suppose that he had executed the indorsement, even if it was in blank, in the capacity of a general and not as a special guarantor. His name being found upon the note at the time of its delivery, and not being payee, he could not be assignor, but must be presumed to have intended to become primarily, and not remotely liable, unless he had so expressly limited his undertaking. The appellees had the right to fill up the indorsement, as a general and not a special guaranty, if it came to them in blank, not having notice that the design was that it should only be special. So that it can make no difference whether the guaranty was oí* was not written when it was signed. There was an abundance of evidence to show, that there was a consideration to support the note. The guarantor having signed it to accommodate the makers, and before it was delivered, he cannot be heard to insist that he received no consideration. His becoming a party, was a part of the original transaction, and the consideration received by the makers, was proof of the consideration to support the guaranty. The agreement, by the makers, that they would furnish security for the purchase, formed an inducement for appellees to part with the goods. And had appellant refused to indorse the note, the probability is that they would not have been permitted to retain them without payment or other security. To permit the appellant to escape liability now, because he received no part of the goods for which the note was given, or because he was not paid for indorsing the note, would work manifest injustice to the payees. It is again urged, that the appellees gave time after the maturity of the note for its payment, and tlkareby released the guarantor. One of the makers testifies,he paid bills that were made after the note was given i(jPPtafore its maturity. That when such payments were madepae offered to apply the money towards paying the note, but appellee insisted that it should be applied to the account, and said that the note might run a year. He states, that the accounts were due when paid. Barnard Oahn says, he heard of no offer to pay the money on the note, although he gave receipts for the money paid on the accounts. Being clerk, and giving the receipts, it is probable that he would have heard it, if such an offer had been made. But, admitting that the offer was made, still the note was not due, whilst the accounts were, and unless otherwise directed, the creditor had a right to appropriate the money on the claim that was due, rather than to one which was not. But it does not seem, that the maker insisted upon its application to the payment of the note. Tie did not so direct, and until it was due, the guarantor could have no right to complain that the money was not applied to the note. If the account had not been due, it would perhaps have made a difference. But it being due, appellees had a right to insist upon its payment, and it was the duty of the debtor to pay it, and in doing so no wrong was done to appellant. Nor do we perceive, from this evidence, that it establishes a valid and binding agreement for an extension of time for the payment of the note. The money was not paid upon the account to procure the extension, nor do we perceive that any consideration was paid for an extension of time. If the promise was made, it was without consideration, and not binding. The judgment of the court below must be affirmed. Judgment affirmed.