45 Tex. 553 | Tex. | 1876
The Only error assigned for the reversal of the judgment in this case is, the ruling of the court excluding from the jury the instrument described in the answer, and pleaded as an offset to appellee’s action.
It is not pretended that this instrument has any connection whatever with the demand upon which the action is brought. The answer setting it up must therefore be regarded as in the nature of a cross-action, and should contain such allegations as would entitle the defendant to a judgment if he was prosecuting a suit on it as plaintiff. (Waterman on Set-off, p. 45, sec, 40, and p. 89, sec. 73.) It is a familiar rule, that where a party wholly fails by his petition or answer, to state a cause of action or ground of defense, he has no occasion to com-' plain because the court has excluded evidence tending to prove the matters alleged in his petition or answer. The answer in this case is framed upon the hypothesis of appellee’s immediate and unconditional liability for the payment of the
There seems considerable conflict between the decisions of the courts of different States in construing contracts and agreements such as that here in question. It is not necessary, however, on the present occasion, to determine whether the appellee became a mere indorser of the note, with a qualification of his liability as indorser in point of time, as he insists, or, as appellants maintain, his undertaking is that of guarantor. For, conceding that it is the latter, it must be admitted that there is a plain and broad distinction between the guaranty of the payment of a note or bill, and the guaranty of its collection. The guarantor in the latter case is not liable to an action on the mere failure of the debtor to pay the note when due, for he merely stipulates thereby that the note is collectable in due course of law by use of reasonable diligence. An undertaking indorsed upon the note by the payee in these terms, “I warrant this note good,” was held by the Supreme Court of Hew York to he a guaranty that the note was collectable, and not that it would be paid on demand. And in order to charge the guarantor it was held necessary to show that payment could not be enforced against the maker. (Curtis v. Smallman, 14 Wend., 231.) And when the stipulation was, “ I guarantee the collection of this note,” it was decided that the guarantor was not liable until after the holder had endeavored to collect the money from the maker. It was equivalent, say the court, to a guarantee that the note was collectable by due course of law. (Cumpston v. McNair, 1 Wend., 457; see also Day v. Elmere, 4 Wis., 190; Hart v. Hudson, 6 Duer, 294; Loveland v. Shephard, 2 Hill, 139.) And where the payee transferredthe note with this indorsement, “I hereby guarantee this note good until January 1, 1850,” the
Affirmed.