Newman v. M. Kaufman & Co.

Howell, J. Defendants are sued in solido on a check drawn by M. Kaufman & Co. in favor of plaintiffs and on which Meyer Weil became surety. The defense by Weil, who is the only appellant, is that plaintiffe [866] are guilty of laches in not presenting said check within a reasonable time, by which he is released from liability. The material facts, are that a member of the firm of M. Kaufman & Co. wished to borrow a sum of money from plaintiffs and give their check for the amount in favor of and to be held by plaintiffs for an indefinite time, and for which they were to receive seventy-five cents per day. Plaintiffs refused to take the check without a'good indorsement. The party asked if defendant, Weil, would be satisfactory, and plaintiffs answered in the affirmative. In a short time the check was presented and accepted with Weil’s name as surety on it. This occurred early in the morning; Newman says about ten o’clock, and Weil says nine o’clock. The testimony of one of the plaintiffs and the defendant Weil is contradictory as to what subsequently occurred in regard to the promise of the latter to pay the check, and we are left to determine the liability of the surety from the whole evidence, the circumstances, and legal presumptions. We attach but little importance to the difference of an hour in the time at which the transaction occurred. “ A check is always supposed to be drawn against funds,” and any one requested to indorse it as surety must know it is to be used differently from its usual purpose, and should show clearly that some specified limit was fixed to his liability. No other object could well be imagined for requiring a surety on a check than that it should be held for a time, or until the funds should be provided. In this case, we think the testimony of Newman is supported by the circumstances and presumptions, and that plaintiffs loaned Kaufman & Co. a sum of money on the check of the latter with Weil as surety for a time not fixed, and that there was no “prolongation of the terms granted to the principal debtor without the assent of the surety,” as urged in defense, and hence the surety has not been released or discharged from the liability assumed by him. Judgment affirmed.