16 Ala. 391 | Ala. | 1849
It is objected to the fifth count, that it does not aver that the value of the slaves had been ascertained by an arbitration as contemplated by the agreement: Further, that it is not avered that the excess of value above forty-six hundred and forty-six dollars and thirteen cents, was sufficient to pay off the note, the amount of which is now sought to be recovered. The count contains precisely such an averment as the second objection supposes to be wanting, consequently the point made does not arise. Conceding that it was indispensable to the plaintiff’s right to recover in an action upon, the agreement, that the value of the slaves should have been adjusted,in the manner it provides, and still the plaintiff might excuse a failure to give notice of non-payment, by showing that the intestate was sufficiently indemnified, though the arbitrators had not acted in the matter. This proposition is perfectly clear, if we will only bear .in mind that the maker of the note is not seeking to enforce the agreement, but the plaintiff, au endorsee of the intestate, who was a prior endorser, no party to the agreement, and consequently not authorised to move in settling the value of the slaves, offers other evidence to the point, by way of excuse for not performing what would otherwise he a legal duty.
The liabilty of an endorser is contingent, and where the paper is mercantile, only becomes absolute upon a demand being made of the primary party, and notice given of the dishonor. His undertaking is conditional, viz, to pay in the event the maker and drawer fails, and he is promptly advised of the fact. Until these steps are taken to charge him., the hold*. r has no claim against the endorser; for until then, it cannot appear that the debtor, whose punctuality the endorser has conditionally guaranteed, will not comply, and if he does not, that the holder will make the guarantee absolute by performing the condition upon which it depends. Such being the contract of endorsement, the cases cited are in principle directly in point, and conclusively establish that the ctaim of the plaintiff against the defendants or their intestate did not accrue previously to the maturi'y of the note; and consequently the act
It is argued for the defendants that if their intestate was indemnified, so as to dispense with notice of non-payment, that then his undertaking was absolute, and the statute began to "run from the grant of administration. The indemnity was the result of an agreement between* the intestate and the maker of the note, of which, from any thing appearing to the contrary, the plaintiff had no knowledge; and whatever may have-been its effect, if he had been informed of it, yet being ignorant, it could not prejudice his rights, or deprive him of a rem-dy to which he would otherwise have been entitled. This proposition we think is sufficiently illustrated by its statement. But is does not by any means follow, that because the contract of the intestate with the plaintiff was’ conditional, and the liability it imposed contingent, the endorsee shall not be permitted to show, that in consequence of an arrangment between the former and 'the maker of the note, the intestate had waived his right as an endorser to insist upon a notice, and was liable at all events. The two questions are disconnected with each other, and the fact that the agreement and endorsement evidence a contract between different parties, and the plaintiff was ignorant of the former, cannot, prevent the plaintiff from claiming any benefit from it, though he will not be prejudiced by it.
We think Deshler was not disqualified by interest from proving that the property received by the defendant’s intestate was an adequate indemnity. A verdict for or against either party would not in any manner affect the question of his liability as the maker of the note. If the plaintiff was unsuccesful, or if his judgment against the defendants remained unsatisfied, he might prosecute his suit against the witness, and the record in the present case would conclude nothing in that action — in fact it is difficult to conceive how it could be used for either party. The witness would not be liable to the plaintiff for the costs, if he failed, or chargeable to him otherwise, to a greater extent than he would be to the defendants should a recovery be had against them on their intestate’s endorsement. The measure of the liability in each case, would be indicated by the face of the note. As to the mode in which
No reason is perceivable why the agreement betrveen the Avitness and the intestate should render inapplicable the principle which recognises the competency of the maker of a note to give evidence in a suit against an endorser. 3 Phil. Ev. C. & H’s notes, 1545, et seq.; Stewart v. Conner, 9 Ala. Rep. 803. The right of the Avitness to recover the value of the slaves beyond the amount of the sum they were intended to pay the intestate, Avas' not drawn in question •, nor can we perceive hoAV it could be in the present case. We repeat that the inquiry as to their value Avas made merely for the purpose of shoAving that the plaintiff was relieved from the obligation to give notice of the dishonor of the note.
What Ave have said will relieve us from the necessity of doing more than giving a passing notice to the charges to the jury. The second charge Avas rightly refused, or if given, to prevent the jury from being misled, the court should have in~ formed them that although the agreement per se did not shoAY that the intestate had funds, provided by Deshler, to pay the note sued on, or amount to a stipulation, that “if Merrill did not pay it,” he (intestate) Avould, yet if the value of the slaves Avas sufficient to pay the $4646 13, and the note also, a matter Avhich they Avere to determine from the evidence, then the agreement Avould be such an indemnity as would excuse the failure to give notice of non-payment. The other notes for Avhich the “ overplus” Avas chargeable, Avere payable long previous to that upon the endorsement of Avhich the defendants are sued; and as there is nothing said in the record in respect to them, it may be infered that they were promptly paid at maturity, or they have been since paid by a party primarily liable. If these inferences are unfounded in fact, and the indemnity is insufficient to discharge all the notes, the defendant may make defence against those still unpaid; but in the