Clark v. Merriam

25 Conn. 576 | Conn. | 1857

Ellsworth, J.

It is claimed in this case, that the verdict is without evidence and positively against evidence.

It is said that if the plaintiff will follow up and support his declaration, he must prove “that the defendant did then and there by his indorsement on the back of said note, undertake and faithfully promise the plaintiff that said note should be good and collectible for a reasonable time thereafter,” and further that the plaintiff had used due diligence, and given the defendant notice before bringing the action.

The first claim is that there is a variance between the proof and the allegation ; that the allegation is that the guaranty is for a reasonable time, while the proof is that the guaranty is for one day. The argument is, that inasmuch as the note is drawn payable in one day, the guaranty is necessarily of the same import, although it is in blank. But we do not think this a necessary inference. It may be prima facie of this import, but is not conclusively so, nor does the form of the indorsement preclude parol proof of what the contract was as to the time to which the warranty was to extend.

The face of the note presents the contract of the drawer of the note, and the indorsement proves that of the guarantor, when filled up according to the agreement of the parties. And although in the absence of all proof aliunde, the latter may be inferred from the former, it may be proved to extend to a longer period, if it was so intended. This was declared to be the law in Beckwith v. Angel, 6 Conn., 316. Perkins v. Catlin, 11 ib., 213. Castle v. Candee, 16 ib., 223, and 1 Sw. Dig. 433.

If this is the rule, then the inquiry here is, was the evidence offered relevant to the issue; and if so, from it might not the jury find that the note was guarantied for a reasonable time, rather than for one day only ?

The circumstances show that a guaranty for one day was not the guaranty in the contemplation of the parties. The maker of the note was then in good circumstances and credit, and why was a guaranty for one day asked for? The creditor, Belina Clark, was, as a matter of personal accommodation, about to divide the note of $800 due him from Clark and Merriam, so that Clark might give his note for $500, and Merriam his for $300. The very object of this was to give a reasonable time to the two debtors who were about dissolving their partnership. Had the note been made payable with interest, as in Castle v. Candee, that circumstance as there held, would have proved that forbearance was contemplated, though the note itself was payable on demand ; but is this endorsement under the circumstances less indicative of intention than that? This note is payable one day from date as a matter of accommodation and not for immediate payment, for if that was intended, the old note would have been collected at once. One day was inserted most probably, because the draftsman had the idea, somewhat prevalent, that without a fixed time of payment the note would not draw interest. It should require clear proof, that a note drawn and guarantied as this was, under the circumstances, was not intended to lie some reasonable and convenient time, but be instantly paid.

Besides, the guaranty of this note was made by the hand of Levi Merriam, the authorized agent of his father the defendant, and he very well knew that the note was to lie, and the jury might well presume that the father knew it likewise. The father’s reference to his son, saying, “ I will tell Levi what you say and he will make it all right with you,” is evidence that the- father had authorised his son to act in his stead, in any manner that would most promote his interest.

As to the reasonableness of the forbearance which was given, we think that the jury might well find as they have. The defendant learned the existence of the note within two or three days after it was given, and that it was unpaid and might remain so, when he referred to his son as the person who would arrange the business to the satisfaction of the creditor. The debtor as the jury might have found, let the note lie unpaid, with the knowledge and consent of the father.

Now what is a reasonable delay, where the note is payable on demand, or one day afterdate, and where there are no circumstances to prove the intention of the parties, we have no occasion to decide. The cases are not uniform. In the case of Castle v. Candee, the court declined to lay down a uniform and absolute rule, preferring to decide each case as it might arise ; but Judge Waite thought the rule ought to be, that until a request to bring suit was made by the guarantor of a note payable on demand, the delay was not unreasonable. This may be as satisfactory as any other general rule, but as we are not called upon to establish any rule, we prefer to follow the example of the court in Castle v. Candee. This verdict can stand well enough without any rule. There is in most cases no great difficulty in ascertaining the real intentions and expectations of the parties, and these should be inquired after, and followed when satisfactorily established by proof.

It is said there is no evidence that notice of the default was given to the defendant before suit brought. Had this been a negotiable note, there must have been a regular demand and notice, but this is a mere guaranty by a stranger, and in such a case the diligence required by law is the immediate institution of a suit by attachment, if the maker of the note is possessed of property.

We are not aware that any notice from the plaintiff is necessary in such a case as this. It is the duty of the guarantor to notice the default himself, for knowledge of that fact is not peculiar to the plaintiff, as this court decided in the cases of Ward v. Henry, 5 Conn., 595, and Hammond v. Gilmore, 14 Conn., 479.

But if the law were otherwise, and notice before suit was held to be necessary, we think the jury were fully authorized from the evidence in the case, to find that the defendant had knowledge of the failure and default of his son, long before this suit was instituted.

We do not advise a new trial.

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

New trial not advised.