| Conn. | Jul 19, 1895
Among the reasons of appeal, it is alleged that the Superior Court erred in deciding that the note in question was not a non-negotiable note under the laws of this
The principal part of the briefs of counsel is devoted to a discussion of the questions whether the presence of the words “ heirs or assigns ” in the note render it negotiable; and if they do not, whether the note has not become negotiable as between the plaintiff and defendant, by reason of the defendant’s indorsement, “ pay to the order of F. B. Carpenter. ”
The sole question decided by the court in finding the issue in favor of the defendant, was that the answer alleging “ that the right of action for the cause stated in the complaint did not accrue within six j'ears next before the commencement of this action,” was a sufficient defense to the allegations of the complaint. The question of the character of the note as to negotiability is not necessarily involved in the issue raised by the pleadings, nor does it appear from the record that it was either decided or discussed in the court below.
By the allegations of the answer it is claimed that the right of action described in the complaint, against this defendant, is barred by the statute of limitations, § 1371 of the General Statutes, which provides that “ no action for an account, or for a debt due by book to balance book accounts, or on any simple or implied contract, or upon any contract in writing not under seal, except promissory notes not negotiable, shall be brought but within six years next after the right of action shall accrue. ” By the demurrer the plaintiff claims that the right of action described in the complaint, comes within the language of § 1370 of the General Statutes, permitting an action to be brought “ on any contract under seal, or promissory note not negotiable,” within seventeen years next after an action upon the same accrues.
The first question which suggests itself is, what is the
Assuming then, for the purposes of this case, that this note, as claimed by the plaintiff, was non-negotiable when made, and that its character in that respect has not been changed by the defendant’s indorsement, we then have before us these facts: On the 30th of July, 1877, J. Steel Mackay gave to the defendant his note for $10,000 payable to the defendant; on the same day the defendant, for good consideration, indorsed and delivered it to the plaintiff, who having, in 1883 when the note fell due, made demand of the maker, then and since insolvent, in 1894 notified the defendant, demanded payment of her, and commenced the present suit against her. Is this an action against this defendant upon a promissory note, within the meaning of the statute limiting the time within which an action must be brought upon a promissory note not negotiable ?
It hás been settled by repeated adjudications in this State, that the undertaking of the indorser in blank of a nonnegotiable note, or of a negotiable note by one not a party to the note, was, prior to the Act of 1884 changing the legal import of such indorsement, that of a conditional guaranty; and that such an indorser is not liable as a maker or joint promisor. Perkins v. Catlin, 11 Conn., 212; Castle v. Candee, 16 id., 223; Rhodes v. Seymour, 36 id., 2; Allen v. Rundle, 45 id., 528, 535.
That such is the law of this State does not seem to be questioned by the plaintiff. He makes no claim that the defendant is a joint maker of the note, but admits in his argument and by his pleadings that the legal import of the indorsement and delivery of the note is: first, an assignment of the equitable title to the plaintiff, and second, an undertaking by the indorser that the note is due and payable according to its tenor, that the maker shall be of ability to
The cause of action against this defendant cannot, then, be said to arise from any promise contained in the note. That promise was made by Mackay, and by him only, and was a direct promise to personally pay to the payee the amount of the note. The present action is not based upon the note, nor is it against the maker of the note, but upon the special contract of guaranty made by a person other than the maker.
A guaranty, whether absolute or conditional, is a collateral and not an original undertaking. It is never a direct promise by the guarantor to pay his own debt, but an undertaking that another person shall perform his contract. The fact that the conditional liability of the guarantor becomes absolute by the failure of the principal to perform his contract, and the inability of the plaintiff to collect the note by the use of due diligence, does not affect the nature of the guarantor’s promise, as seems to be claimed. He can only be held liable on the promise made by him; and proof of his collateral undertaking as guarantor will not support an action charging the defendant with liability as an original debtor or promisor. Rhodes v. Seymour, Allen v. Rundle, supra.
It is true that the note and guaranty are not contracts so separate and independent that each is always complete without the other. The note in the present case is a complete contract without the guaranty, but in interpreting the guaranty the note must be read as a part of the contract. They are, however, distinct and essentially different contracts; they are between different parties, they may be executed at different times and by separate instruments, and the nature of the promises and the liability of the promisors differ substantially in the two cases. “A stipulation that another shall pay, or that if he does not, the promisor will, differs essentially from a promise to pay directly.” Note to Wain v. Walters, 2 Smith’s L. C., Part I., p. 260.
In Gould v. Moring, 28 Barb., 444" court="N.Y. Sup. Ct." date_filed="1858-11-04" href="https://app.midpage.ai/document/gould-v-moring-5459546?utm_source=webapp" opinion_id="5459546">28 Barb., 444, 446, the court says: “ In Brewster v. Silence (4 Seld. 207) the note and guaranty
In the case of Gardiner v. Nutting et al., 5 Me., 140, the defendants were payees and guarantors of a note transferred by them to the plaintiff. One of the answers was the statute of limitations. The action was barred unless taken out of the statute by a new promise of the makers. The court, in giving the opinion, say: “But in this case, the makers and the defendants were never jointly liable to the plaintiff. The undertaking of the defendants was independent of, and collateral to, that of the makers. Neither of these collateral parties has a right to affect or vary the liability of the other. Each must rest upon any legal ground of defense, which no admission of the other can defeat.”
In the case of Bissell v. Gowdy, 31 Conn., 47" court="Conn." date_filed="1862-09-15" href="https://app.midpage.ai/document/bissell-v-gowdy-6578046?utm_source=webapp" opinion_id="6578046">31 Conn., 47, 50, this court uses the following language: “ If the cases read to us can be reconciled, it would seem to be upon the ground that the special guaranty that the note was good and would be collectible till a particular future day, was not negotiable, since it does not come within the definition or description of a note payable to any person, or to his order, or to bearer, and is not of course a bill of exchange in any sense.”
In Greathead v. Walton, 40 Conn., 226" court="Conn." date_filed="1873-06-15" href="https://app.midpage.ai/document/greathead-v-walton-6579663?utm_source=webapp" opinion_id="6579663">40 Conn., 226, 236, the plaintiff was the payee, and the defendant a guarantor of a note. In discussing the nature of the contract between them, Judge Foster, in giving the opinion of the court, says: “But the contract between the plaintiff and defendant is another and different contract from that between the maker and payee of this note.” See also the case of Monson v. Drakeley, 40 Conn., 552" court="Conn." date_filed="1873-11-15" href="https://app.midpage.ai/document/monson-v-drakeley-6579757?utm_source=webapp" opinion_id="6579757">40 Conn., 552, 559.
•We think the case of Lemmon v. Strong, 55 Conn., 443" court="Conn." date_filed="1888-01-13" href="https://app.midpage.ai/document/lemmon-v-strong-6582264?utm_source=webapp" opinion_id="6582264">55 Conn., 443,
We are of opinion that the present suit is not an action upon a promissory note, but it is an action upon the special contract of guaranty, and that the right of action upon such guaranty, hawing accrued more than six years before the action was commenced, is barred by the statute of limitations, § 1371 of the General Statutes.
There is no error in the judgment of the Superior Court.
In this opinion the other judges concurred.