Michael v. Babbet

Seevers, J. This case comes before us on a finding of Tacts by the court. The finding is that the note at its incep [14] tion was usurious, and that the defendant Jacob Babbet, after the execution of the note, upon a sufficient consideration, guarantied the same by writing thereon the following words: “ I hereby indorse the within note. Jacob Babbet.” The single question we are required to determine is whether Jacob Babbet can avail himself of such defense. As he was not a payee of the note, but a stranger thereto prior to writing his name thereon, he is, under the statute, a guarantor. Code, § 2089. The writing on the note amounts, in legal effect, to a blank indorsement; it is neither more nor less. A guarantor is a surety. Brandt, Sur., 1; 2 Daniel, Neg. Inst., § 1753. A surety may avail himself of the defense of usury to the same extent as the principal can. Brandt, Sur., 202. Wermer v. Shelton, 7 Mo., 237; Morse v. Hovey, 9 Paige, 196; Austin v. Fuller, 12 Barb., 360; Stockton v. Coleman, 39 Ind., 106. And in Huntress v. Patten, 20 Me., 28, it is held that the guarantor of a contract tainted with usury is so far a party to the same that he may set up such defense. Following these authorities, we hold that there is no error in the record. Affirmed.