Case v. Spaulding

| Conn. | Feb 15, 1856

Ellsworth, J.

It is found that the note, in suit, was given in renewal of a larger one of $400, payable at the Farmers’ and Mechanics’ bank. That note was given by S. C. Spaulding & Co., to these plaintiffs, to apply on their debt due to the plaintiffs, of some eight hundred dollars. No other name was asked for, or expected, by the plaintiffs, as security for that note. Afterward, when the plaintiffs wished to get the note discounted, they endorsed, and offered it for that purpose, at the bank. But the bank declined to discount it without another name, whereupon the plaintiffs, at their own request, obtained the endorsement of this defendant, and afterward got the money at the bank, and applied it on the indebtedness of said S. C. Spaulding & Co. Before this last note became due, the note in suit was made, and left at the bank, payable to the plaintiffs, as first endorsers, to be substituted, by way of renewal. The plaintiffs again requested the defendant to endorse this note, and he did it without the least idea of becoming an endorser before the plaintiffs, or becoming liable to them upon the note, in any manner whatever.

Now, on these facts, the plaintiffs cannot be permitted, by erasing their own name from the note, after taking it up at the bank, to make the defendant a guarantor of the note to them. This would be in bad faith, and would be contrary to the understanding and objects of the parties. The first note was endorsed, by the defendant, to give it currency at the bank, and so was the second; and although the defendant wrote his name first, in time, on the last note, it was with the expectation that the plaintiffs, who were of necessity to be the first endorsers, as the note was made payable to their order, would put their name above the defendants, and so would be first liable to the bank, and to the defendant, if he should have to pay the note.

Now the evidence, the reception of which raises the main question in the case, was not only unimportant because superfluous, and so has done the plaintiffs no hurt, but it was strictly admissible as proof; it showed the history and manner in which the defendant’s name came to be on this note, and that the defendant never obligated himself to the plaintiffs, but rather that they had obligated themselves to him. Nothing is more common than to introduce evidence of the real and true relation of parties to each other, whose names are on negotiable paper, where, prima facie, the position, or order of signature, makes a contract different from the true relation of the parties. The proper enquiry is, who, among the parties, is to pay the debt. That is the person to be liable, whether he be maker or endorser. Beckwith v. Angell, 6 Conn. R., 315.

There is no error.

In this opinion, the other judges, Storrs and Hinman, concurred.

Judgment affirmed.