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it has been a work of some time and difficulty to get rid of them. 1 Comstock 324.
The authority of Joselyn v. Ames, 3 Mass. 274, cited ante, p. 135, was conceded by the opinion of Spencer, J. but not by the decision in Herrick v. Carman, 12 Johns. 161, cited ante, p. 232. That opinion was followed in Nelson v. Dubois, 13 Johns. 175, and Campbell v. Butler, 14 Id. 139. But the decision in Herrick v. Carman, rather than that opinion was followed in Tillman v. Wheeler, 17 Johns. 328, where it did not appear that the party sued as guarantor knew for what purpose the note was designed, or that there was any promise to, or communication between him and the holder of the note. His name being on the note as second endorser, the court would not construe his endorsement to be a special guaranty; it took the distinction mentioned ante, p. 135, between this case and the cases in 13 Johns. 175, and 14 Id. 349. Then there were the cases of Dean v. Hill, 17 Wend. 215, and Hough v. Gray, 19 Id. 202. After which, on a reconsideration it was denied that the mere endorsement of negotiable paper can be turned into an absolute guaranty from the circumstance of its being intended to give the maker credit with the holder. Seabury v. Hungerford, 2 Hill 83. And this case was followed in Hall v. Newcomb, where the court of errors, though at first equally divided, after a second argument decided by a pretty strong vote to uphold contracts as they had been made by the parties instead of making new contracts for them. 1 Comstock 324. In that case of Hall v. Newcomb, a promissory note made by P. Farmer, payable to the plaintiff or order, was endorsed by the defendant for the maker's accommodation; and no demand of payment having been made, nor any notice of dishonour given to the defendant, he was sued in one count as maker and in another as guarantor. If the person to whom or to whose order the note in Hall v. Newcomb was payable, had endorsed it himself, there was no doubt a holder might have charged the defendant in the character of second endorser. 3 Hill 235. His writing his name in blank on the back of a negotiable promissory note imported nothing more; it imported merely that he would pay the note to the holder on receiving due notice that the maker on demand at the proper time, had neglected to pay it. Where," said Walworth, C., "a note is made payable to an individual or his order and is endorsed by him in blank and in that situation is presented to another person for his accommodation endorsement, who endorses it accordingly, the legal effect of his endorsement is to make him liable in the charac
ter of second endorser merely; and he can in no event be made legally liable to the first endorser." 7 Hill 419. And so in Nelson v. Dubois, where the note was payable to Nelson or bearer, as the defendant might have been charged as endorser, without any endorsement by Nelson, the holder should not have been allowed to change the contract of endorsement into one of guaranty. Id.
So likewise in Pennsylvania. After the decision in Leech v. Hill, 4 Watts 448, the supreme court of that state had before it Tillman v. Wheeler, 17 Johns. 328, cited ante, p. 288, and followed it. Taylor v. McCune, 1 Jones 466. The court has expressed the opinion when a person who is neither maker, drawer, payee or acceptor, puts his name on commercial paper, before it is negotiated, that the payee may place the names after his own, in a course of endorsements; and that entitles a holder to maintain an action against either of the signers as prior endorsers. Kyner v. Shower, 1 Harris 444.
And in Massachusetts all the cases from Hunt v. Adams, 5 Mass. 358, down, in which an endorser has been charged absolutely as a promisor or guarantor, Shaw, C. J. observes, are cases where the name appears on the note but not as a regular endorser. When on the face of the paper the payee is the first and the defendant the second endorser, the legal effect of the endorsement cannot be altered by parol evidence. It matters not that the name of the first endorser was forged; the defendant's liability is still as endorser-on the condition of dishonour of the note by the promisor and seasonable notice to the endorser. Howe v. Merrill, 5 Cush. 80.
The courts of New York are equally opposed to allowing a guarantor to be turned into either a maker or an endorser. It will not treat as joint or several maker, a man who is the payee and has written on the back a guaranty of payment. Still less will it treat as such a man who had nothing to do with the original concoction of the note, and whose name did not appear on it till some months after it was given, and till it had passed through the payee's hands. If this last could be sued as the maker of a note, Ketchell v. Burns, 24 Wend. 456, he certainly cannot be sued either as a joint, or a joint or several maker of the original note. Miller v. Gaston, 2 Hill 191. Nor can either of them be charged as endorser; for the plain reason that they have severally made an express contract of a different nature, and have not agreed to answer as endorsers. Meach v. Churchill, 2 Wend. 630; Lamourieux v. Hewett, 5 Id. 307. Watson's ex'ors v. McLaren, 19 Wend. 557, 566, is not regarded as deciding that a guaranty can, unVOL. II.-19
der any circumstances, be treated as the endorsement of a Miller v. Gaston, 2 Hill 192.
In Maryland there have been some decisions which appear not entirely consistent with the doctrine now established in New York. Sullivan v. Violett &c. 6 Gill 181. On the back of a sealed instrument, whereon was written the name first of the obligee and afterwards of another person-the court allowed to be written over the names of these endorsers a joint and several promise to the holder to pay him the amount of the specialty should the obligors make default in payment. Gist &c. v. Drakely, 2 Gill 340. If in Maryland there be an implied contract of an assignor, such as is established in Virginia and Kentucky (ante, p. 271,) this case would seem to hold a doctrine now repudiated in New York-that a written contract of one kind may be turned into a contract of a different kind by parol proof concerning the intention of the parties; that one appearing by the paper to be a several contractor, may, under certain circumstances, be charged as a joint contractor; that a conditional undertaking to pay in case of default by the obligor, and due diligence to recover from him, may, without performance of the latter condition, be turned into an absolute undertaking to pay immediately on default.
No doubt where a person who is not the payee is privy to the original consideration, and at the time the bond or note is given signs on the back an absolute undertaking to pay it at maturity, he may be treated as a joint and several promisor with the party who signs on its face. Hough v. Gray, 19 Wend. 202; Dean v. Hall, 17 Wend. 214. This stands on the principle that two instruments of the same general nature, both executed at the same time and relating to the same subject matter, are to be construed together as forming but one agreement. He who signs and he who endorses having both promised to do the very same thing, to wit: to pay the money at the specified time, they may, without doing any violence to the contract, be regarded as joint makers. And as in point of form each promises for himself, the undertaking may be treated as several as well as joint. Bronson, J. in Miller v. Gaston, 2 Hill 190; Lequear &c. v. Prosser, 1 Id. 256; S. C. 4 Hill 420; Amsbaugh v. Gearheart & Co. 1 Jones 482. In Massachusetts it matters not that the endorsement is in blank. The rule there is, that if before a note is received by the payee another person put on the back of it his name to give credit to it, he is not regarded as endorser or guarantor, but as a surety acting on the same consideration with the principal promisor. Hunt v. Adams, 5 Mass. 358; 6 Id. 519;
Sumner v. Gay, 4 Pick. 311; Samson v. Thornton, 3 Metcalf 275; Richardson v. Lincoln, 5 Id. 203; Union Bank v. Willis, 8 Id. 504. The note is regarded a joint and several note, because each promises to pay and both unite in the same promise. Bryant v. Eastman, 7 Cush. 113.
But in all these cases-the party proceeded against was not a payee. If they can be sustained at all, it is on the ground that the defendant could not on the face of the paper be charged as endorser or assignor; that there was an agreement that he would answer in some other form; and that the plaintiff might write over the name such a contract as would carry into effect the intention of the parties. 2 Hill 84; 3 Id. 235. This ground should not be deemed applicable when the paper on its face imports the implied contract of an assignor on which an action might be brought.
Since Gist v. Drakely, the court of appeals of Maryland has had before it another case, the decision in which conforms to the doctrine now established in New York and is opposed to the Virginia case of Orrick v. Colston, 7 Grat. 195, cited ante, p. 136. Hoffman &c. v. Coombs, 9 Gill 284.
5. Of guaranties in respect to the business, goods, time,
amount or terms.
A guaranty may be for a debt contracted in a joint business or in an individual business. Drummond v. Priestman, 12 Wend. 518. It may be limited to a particular article, Evans v. Whyle, 5 Bingh. 485; 15 Eng. Com. Law Rep. 514; to one debt or payment or liability for one parcel of goods, Melville &c. v. Hayden, 3 Barn. & Ald. 593; 5 Eng. Com. Law Rep. 389; Nicholson v. Paget, 1 Cr. & Mee. 48; 3 Tyrwh. 164; Rogers &c. v. Warner &c. 8 Johns. 119; Aldricks &c. v. Higgins &c. 16 S. & R. 213; Anderson v. Blakely, 2 W. & S. 237; Whitney &c. v. Groot, 24 Wend. 82; Boyce &c. v. Ewart, 1 Rice 126. Or it may be a continuing guaranty applying to debts contracted from time to time by a third person in the way of his business, Hargreave v. Smee, 6 Bingh. 244, 19 Eng. Com. Law Rep. 69; Allen &c. v. Kenning, 9 Bingh. 618, 23 Eng. Com. Law Rep. 401; Mayer v. Isaac, 6 M. & W. 605; Douglass &c. v. Reynolds e. 7 Peters 122; Colburn &c. v. Dawson, 10 Com. Bench (1 J. Scott) 765, 70 Eng. Com. Law Rep. 765; contemplating future loans or advances to him as distinguished from a pre-existing debt, Glyn &c. v. Hertel, 8 Taunt. 208, 4 Eng. Com. Law Rep. 72; Wright v. Johnson, 8 Wend. 512. Though continuing it may mean that the guarantor will be
answerable for not more than a specified amount; that within that amount he will be answerable for supplies at any time until the credit is recalled, Mason v. Pritchard, 2 Camp. 436; 12 East 227; Merle &c. v. Wells, 2 Camp. 413; Bastow v. Bennett, 3 Camp. 220; in which case the amount expressed limits the amount for which the guarantor is to be responsible-not the amount to which the dealing or whole credit given is to extend, Bent &c. v. Hartshorn, 1 Metcalf 24. Or without limiting the amount, the guarantor may limit his responsibility to goods supplied within a specified time. Hitchcock &c. v. Humfrey &c. 5 Man. & Grang. 560, 44 Eng. Com. Law Rep. 296; Louisville Man. Co. v. Welch, 10 How. 473. Or the guaranty may be limited as to time and amount, Simpson &c. v. Manley &c. 2 Cr. & Jerv. 11; and prescribe certain terms, Hunt v. Smith, 17 Wend. 179; Dobbin &c. v. Bradley, Id. 422; Birckhead v. Brown, 5 Hill 640; Walrath v. Thompson, 6 Id. 540; Smith v. Dunn, Id. 545. Like other commercial contracts it is construed with reference to the usages of trade. S. C. S. C. When there is a limitation as to the time within which the purchases are to be made, but not as to the time of the credit to be given to the purchaser, and credit appears to have been contemplated, there may be such as is given on the sales of such goods in the ordinary course of trade. Louisville Man. Co. v. Welch, 10
6. Whether there must be notice of acceptance of guaranty to make it absolute.
The undertaking of the guarantor may be absolute to pay for supplies furnished or advances made the third person to a definite amount; without creating or implying the necessity of notice of its acceptance or notice of such supplies or advances. Duval &c. v. Trask, 12 Mass. 154; Caton v. Shaw &c. 2 Harris & Gill 22; Whitney v. Groot, 24 Wend. 84. Ór his letter may be only an overture or proposition leading to a guaranty; in which case there must be notice to the writer of its being accepted as a guaranty or some subsequent consent on his part to convert it into a conclusive guaranty. McIver &c. v. Richardson, 1 M. & S. 557.
In the United States, some cases lay it down as a general principle, that when the party offering to guaranty is uncertain whether his offer will be accepted, and uninformed before hand as to the amount of debt to be created, so that he cannot know whether he is ultimately to be liable or not, nor to what extent, it is necessary, in order to charge him, that he should