50 Cal. 254 | Cal. | 1875
The promissory note in suit was made by one Nolan, payable to the order of the defendant Tully, and by the latter indorsed and delivered to the plaintiff before maturity. After the delivery of the note to the plaintiff, and some four months after its maturity, the defendant Durkin, at the request of Tully, indorsed his name upon the note as additional security for its payment, and for the purpose of procuring a delay of legal proceedings by the plaintiff against Tully. Judgment was rendered against both of the defendants, and the defendant Durkin appeals from the judgment and from an order refusing him a new trial.
It is claimed by the counsel for appellant that the contract of Durkin was a promise for the debt on default of
The contract of Durkin was that of a guarantor. It has been frequently so held by this Court. (Ford v. Hendricks, 34 Cal. 673 and cases cited.) It is also the settled law in this State and elsewhere, that the promise of a guarantor is not within the Statute of Frauds if made before the delivery of the note, or if made at such time or under such circumstances that the note and guarantee constitute in fact one transaction. (Howland v. Aitch, 38 Cal. 135; Ford v. Hendricks, supra.) In these cases the guarantee is considered as an original contract resting upon the consideration of the contract which is guaranteed. But the case before us differs materially from these. There is here no pretense that the guarantee of Durkin formed a part of the principal contract, or was even contemplated when the note was made. It is clearly a collateral contract, pure and simple; and, though based upon a sufficient consideration, is fatally defective in that it fails to express the consideration in writing, as required by our Statute of Frauds. (Parsons on Notes and Bills, 127; Mallory v. Gillett, 21 N. Y. 413; Smith v. Ives, 15 Wend. 182.)
There is another point equally fatal to the plaintiff’s case. The guarantor of a promissory note is entitled to notice of non-payment. (Geiger v. Clark, 13 Cal. 579; Reeves v. Howe, 16 Cal. 152.) No notice to Durkin was alleged in the complaint or proven at the trial.
Judgment and order reversed and cause remanded.
