69 Md. 125 | Md. | 1888
delivered the opinion of the Court.
In this case an action of assumpsit was brought by the appellee against the appellant on the 1th of September, 1881. The declaration contains the common counts, and also a special count charging the defendant in the usual form as endorser of a promissory note dated the 1st of July, 1881, for $250, drawn by George S. Powell as maker, in favor of the plaintiff as payee, and payable on or before the 1st of January, 1883. The note is as follows:
“$250.00. Denton, Maryland, July 1st, 1881.
“On or before the first day of January, 1883, for value received in one Buckeye Self-Binder 6 ft., Ro.— I the undersigned of Caroline County, State of Maryland, promise to pay to the order of C. Aultman & Co., (an incorporated company under the general laws of the State of Ohio), of Canton, Ohio, two hundred and fifty dollars, payable at the office of Adams Express Company, at Ridgely, Md., with interest at six per cent, per annum, from date until paid. Presentment for payment and protest ‘ waived.'
“George S. Powell.”
“For value received I hereby guarantee the. payment of the within note at maturity, and any renewal of the same, and hereby waive protest, demand, and notice of demand and non-payment, and suit against the maker, and consent that the payment of this note may be extended from time to time, without affecting my liability thereon.” “Dated this 9th day of November, 1881.”
“William R. Emerson.”
The case was tried upon issues joined on the pleas of never indebted, and never promised as alleged, and upon the usual replication to the jilea of limitations.
The principal question raised by the exceptions is can this obligation 'be offered in evidence against the defendant under this declaration; and this depends upon the character and effect of the obligation itself. The law is no doubt well settled that in case of an ordinary and usual guaranty, as where one contracts in writing, to be answerable for goods sold -to a third party, or where in like manner one engages to pay a note in case the maker fails to pay the same, the contract of guaranty must be declared on specially, and it cannot be given in evidence under the common counts in assumpsit. Mines vs. Sculthorpe, 2 Camp., 215. The form of such a declaration is set out in 2 Chitty's Pl., (17th Ed)., 138, and in 1 Harr. Ent., 388. The reason for this is that in such cases it is necessary to aver and set out the conditions upon which, according to the terms of his contract, the liability of the guarantor arises.
But the obligation now before us is a peculiar one, and differs widely from that of an ordinary guaranty.
It is said, however, upon the theory that this is a guaranty of the note, that to bind a party upon a collateral promise to answer for the debt, or default of another, it is necessary, under the Statute of Frauds, that the consideration as well as the promise should appear from the writing; and this no doubt has been the well settled law of England, ever since the case of
From what we have said it follows there was no error in the rulings of the Court below in the first exception, and in rejecting the defendant's third, fourth, fifth, sixth, seventh and eighth prayers.
The other question in the case relates to the- admissibility and effect of the evidence of the witness, Urie Townsend, to remove the bar of the Statute of Limitations, and as to this very little need he said. It is very clear that if admissible, the admissions proved by this witness to- have been made to him by the defendant within three years before the commencement of this action, were sufficient to remove the bar of the Statute. According to this evidence the defendant admitted his liability upon this note, that it had not been paid, and his obligation to pay the same, and this admission was not accompanied with any qualification or declaration which, as between him and the plaintiff, if true, would have exempted him from a moral obligation to pay the same. It is said, however, that these admissions were made to the. witness when he was counsel for the defendant and were therefore privileged. But we have carefully read the testimony on this subject, and can find no evidence that the relations he-
Judgment affirmed.