Hoover v. McCormick

WiNslow, J. The plaintiffs were clearly entitled to judgment upon the undisputed facts. No discussion of the exceptions in detail is necessary. No evidence was given or offered which tended to show any fraud in procuring MoOormick's signature to the guaranty of payment. The utmost that can be claimed is that it tended to shoyr that he made a mistake, and signed a guaranty of payment when he only intended to indorse the note. There is nothing tending to show that he did not intend .to waive demand and notice of nonpayment. Indorsement, with demand and notice waived, is an absolute agreement to pay if the maker does not pay at maturity. It results necessarily that the defendant is in no better condition as an indorser who has waived demand and notice, than he is as a guarantor. In either case he has contracted to pay if the maker does not. The contention of mistake is therefore immaterial. The failure of plaintiffs to realize on the collateral security does not relieve the appellant, whether he be an in-dorser or a guarantor. Mere delay or passivity of the creditor does not discharge an indorser or guarantor. Daniel, Neg. Inst. §§ 1311, 1326, 1328; Day v. Elmore, 4 Wis. 190. It is plain that there was ample consideration for the appellant’s contract. By the Court.— Judgment affirmed.