6 Cal. 394 | Cal. | 1856
Lead Opinion
Mr. Chief Justice Murray concurred.
This case presents one of the loosest transactions ever reported, upon which a case was brought into Court. There is really shown by the evidence no authority whatever by the defendant to any one to sign his name, unless that authority can be inferred from his silence when told that it had been signed. But as this has been passed upon as a fact, it is not necessary to review it, even although there is no conflicting evidence. It appears sufficiently clear that if any authority was given, it was confined to signing it as a surety, or in the common and ignorant use of the language on the occasion, as “ security.”
This implies a secondary liability, and it should so have appeared in some manner on the note, so as to entitle the surety to notice of demand upon the principals and non-payment by them. It is not material on what part of a note a secondary promissor places his name; if the character of his liability is made to appear, his rights are the same as those of an endorser. This is in strict conformity with the decisions we have heretofore made, and to which we were led by the conviction that the rules of law fixed a "uniform liability as to all such contracts, which disclose the intention of the contracting parties to be alike. In Riggs v. Waldo, 2 Cal. R., and in Gimmey v. Donnelly, 5 Cal. R., the names of the endorsers or guarantors were on the back of the note; while in
It is not, therefore, so much the position of the party’s name upon the paper which denotes his liability, (although it frequently does so,) but it is the intention with which he executes it, if such intention is made to appear by the note itself, which determines whether his liability is primary or secondary.
It is clear, in this case, that the authority given by the defendant was to sign his name as surety, and not as principal, and as the authority was not exercised in the manner delegated, the plaintiff cannot recover.
Judgment reversed.
Rehearing
and Mr. Chief Justice Murray and Mr. Justice Terry concurred.
The petition for a re-argument of this cause has induced us to review each step of the ground we have heretofore taken in regard to the class of cases to which this belongs. The petitioner cites and relies upon the case of Humphreys v. Yale et al., decided by this Court at the April term, 1855. Some of the expressions used, in the opinion in that case, have been misunderstood by the counsel in this, from the want, doubtless, of a particular reference to the facts of that case. It came up here upon error assigned in sustaining a demurrer to the answer, which set out simply that the word surety had been obliterated or torn away from one of the names of the makers of the note: but the answer failed to show in what respect this alteration was of any importance. To make such an averment effectual as a defence, it was necessary also, to allege a want of demand upon the principal, and notice thereof to the endorser, or some other fact, which in connection with the averment made, would have operated to the discharge of the surety from liability •, so that in fact, the question of demand and notice did not arise in tíre case, and was not argued or considered.
In the various decisions which we have made upon this subject, we have not pretended to follow the opinions of other Courts, but have expressly stated the contrary. It was, indeed, from a full consideration of the various and conflicting judgments which had been rendered upon like cases, that we felt constrained to investigate carefully upon what principle they ought to rest, and to go back to the fountain-head to ascertain a rule founded upon reason, and operating with uniformity and certainty.
In the case of Riggs v. Waldo, 2 Cal., there was an irregular guarantee on the back of the note. In the case of Laurencel v. Lightstone, 4 Cal., there was an undertaking in express words as surety, on the face of the note.
In a subsequent case unpublished, there was the word “ surety,” or “ security,” written opposite a name beneath that of the principal.
What then was the position of these various parties ? They were
Besides these reasons, which have imperatively demanded from our judgment the rule we have adopted, the considerations that we are free from the uncertainty and vacillation which everywhere else prevails; that contracting parties will easily and clearly comprehend their respective rights and duties; that our Courts will no more be the arenas of conflicts upon this class of cases, which involve nice distinctions and metaphysical refinements; all tend to confirm us in the propriety of our course.
Because we have differed from other judges upon the question before us, we cannot allow that we are departing from the settled law, although it may be admitted that decided cases are in some sense, evidence of what the law is. I say in some sense, because it is not so much the decision, as it is the reasoning upon which the decision is based, which makes it authority, and requires it to be respected. The cases we have declined to follow, exhibit no agreement whatever, afford no certainty, and by attempting distinctions between facts showing but slight shades of difference, they invite contest and litigation upon every contract of the kind which arises.
Resting, therefore, upon the maxim, that reason is the foundation of the law, we think that we are not arrogant in assuming, that we have settled this subject of controversy upon the strict doctrines of the Common Law. We have made this full review of the question to show our determination, after great deliberation, to adhere to our former opinions, and that the profession and the public may be advised accordingly.
Petition denied.
