Hammel v. Beardsley

Mitchell, J. The only question presented by this ease is whether the absolute guarantor of the payment of a promissory note, upon the same instrument, may be joined as defendant with the maker. At common law those holding different relations to the same instrument, as makers, drawees, indorsers, etc., could not be united in the same action. A radical change in this respect has been made by statute in most of the states, including our own. “Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same instrument, may all or any of them be included in the same action, at the option of the plaintiff.” Gen. St. 1878, c. 66, § 36. The statutes of New York and of many other states do not contain the words italicized above, and hence are, so far, much narrower than our own, and have been generally held not to reach independent and collateral agreements, though pertaining to the same subject-matter. The policy of our statute clearly is to prevent a multiplicity of suits by uniting in one action all who are liable in any way on the same claim. There is no principle of reason which requires two separate suits against the parties when one would effect the same object,- and every reason which can be given for uniting a maker and indorser in one action -will apply with equal force to maker and guarantor. If an indorser is liable on the same instrument with the maker, so is an absolute guarantor of payment, for his undertaking is in the nature of a surety. We have not overlooked the technical distinction between the undertaking of a surety, which is primary, and that of a guaran-. [316] tor properly so called, which is collateral and secondary. But one who absolutely guaranties payment of the debt is in every respect essentially a surety. Moreover, in view of the manifest policy and purpose of this statute, the word “surety” must.be understood as including any one who is bound on the same instrument for its payment with another, who, as between themselves, is the principal debtor, whatever may be the particular form of the undertaking. If not, the italicized clause in the statute would be without meaning or effect. Bliss, Code Pl. §§ 94, 95; Marvin v. Adamson, 11 Iowa, 371. Order reversed.