Martin v. Boyd

Upiiam, J. It seems to be conceded that the defendant m this case is liable in some mode ; and the sole question for consideration is, whether he is liable as an original pro-missor, or endorser, of the note, on the back of which he has affixed his signature. The declaration alleges that the signature was affixed at the time of making the note : and such may be regarded as the settled presumption of law, uf|til evidence to the contrary is shown. On this presumption the act of the defendant in affixing his signature was an original undertaking, and the case therefore differs from that of Hodgkins vs. Bond, 1 N. H. Rep. 284. There it was in evidence that the signature of the defendant was placed on the hack of the note after it had become overdue ; and the court held that it was not an original undertaking of the defendant, or such a memorandum in writing as to render him liable to pay the debt of another, within the meaning of the statute of frauds. That question does not arise here. The undertaking of the defendant must be regarded as made at the creation of the note ; and the inquiry is. in what mode he has bound himself by thus becoming an original party to the instrument. There is no evidence offered, but the signature upon the back of the note, to show the intent of the parties; and [388] the contract must be determined solely from the state of the paper as produced. It has been holden, in some instances, that the payee of the note is empowered by the act of the defendant to draw out a contract over the defendant’s signature, showing a liability of guarantor or endorser, as he shall elect. But we regard the act of the defendant as a definite contract in law, which is not left to depend on the mere pleasure of the payee of the note ; but where the contract is drawn out by him, it must follow the regular presumption of law. In our view, no one can be properly regarded as the endorser of a note unless he stands in the relation of assignor, or so purports to stand on the face of the paper, and thus becomes technically holden as endorser, by reason of the currency given by him to paper transferred by him for a valuable consideration. I am aware that the authorities in New-York sustain a different doctrine, but we see no good reason for a departure from this rule. 17 Johns. 326, Tilman vs. Wheeler; 12 Johns. 159, Herrick vs. Carman. In this case, it is quite clear that no transfer of the note has ever been made, or was designed to be made. The note has ever remained the property of the original payees, and the defendant’s signature must have been affixed on the back of the note with a design to render him liable, in our view of the law, either as guarantor or as an original promis-sor. The authorities make but little distinction as to the liability in either of these relations. It seems to be well settled that the guarantor of a note is liable, whether there has been a presentment of the note to the promissor and a notice of non-payment to the guarantor or not. 8 East 242, Warrington vs. Furber; 5 Maule 62, Swingood vs. Bowes; 20 Johns. 365, Allen vs. Rightmere; 2 Greenl. R. 261, Cobb vs. Little; 4 Day 444, Williams vs. Granger. In Massachusetts it is settled, in repeated decisions, that whenever the name of the individual is placed on the back of the note, at the time of its inception, he is holden as an [389] original promissor. 8 Pick. 122, Baker vs. Briggs; 4 Ditto 311, Sumner vs. Gay; 19 Ditto 260, Chaffee vs. Jones; 9 Mass. 314, White vs. Howland; 24 Pick. 64, Austin vs. Boyd; but that where the name is placed on the note after its inception, he is holden as guarantor, and not as promissor or endorser. 4 Pick. 385, Tenney vs. Prince; 7 Mass. R. 233, Ulen vs. Kittredge; 11 Mass. R. 436, Moies vs. Bird. In 9 Ver. R. 345, Flint vs. Day, it was held that where a person, not a party to a note, signs his name on the back of it, without any words to express the nature of his undertaking, he is considered as joint promissor with the other signers ; and if any of the other signers are merely sureties, he is considered as a co-surety with them. We see no objection to conforming to the rale laid down in these authorities. It is clear in our view that the defendant designed by his act to subject himself to the liability, either of a promissor or guarantor of the note; and as it is holden in well considered decisions that the liability is that of an original promissor, we are disposed so to regard the contract in this case. There must, therefore, be Judgment on the verdict.