Fuller v. McDonald, 8 Me. 213

Fuller v. McDonald

8 Me. 213 | Me. | 1824

The opinion of the Court was read at the next September term in Alfred, as drawn up by

Weston J.

The deposition of James Means, and the first deposition of Robert M. Barnard ; also a memorandum signed by tho defendant, and another by Earl Sturtevant, used at the trial, were objected to by the counsel for the defendant. The first deposition of Barnard, taken by itself might be liable to objection, as it justified tho inference that he was interested in the suit, and ultimately to bo benefited by it, if tho plaintiff prevailed. But laying his deposition out of the case, the same facts are testified to by Eleazer Howard. Besides, in Barnard’s second deposition, given after all interest on his part had ceased, he reaffirms the facts stated in the first j thus removing every objection to his testimony.

It has been urged, that the liability of the intestate and of the defendant, if liable at all, is upon a contract of guarantee. And that if the plaintiff from the evidence, if competent, could maintain an action upon such a contract, he has no count charging the defendant upon this ground. An indorser, is conditionally liable ; so is a guarantee ; but the latter may be holden, where the former would not be. The liability of a guarantee, and the steps necessary to charge him, have been well set forth and illustrated in the case of *218the Oxford bank v. Haynes, 8 Pick. 423. He is generally either the payer of a note not negotiable, or some person not named in the body of the note or other instrument, of which he becomes the guarantee. We are not aware of any case in which the payee of & negotiable note has Been charged as a guarantee', who indorses his name upon the note. If however he distinctly and expressly engages as such, there does not appear to be any objection to his being so charged. But it is a contract of a specific character, governed by its own principles. And there is certainly great weight in the position, that upon such an engagement, he cannot be held as- indorser, relying upon this contract as evidence of a Waiver of demand and notice. It would be confounding principles well settled, which it is important to preserve. But if, as was the present case, the payee of a negotiable note indorses it in blank, he thereby assumes a legal liability as indorser, depending on written evidence. It would affect his liability, and materially vary his undertaking, if it could by parol evidence be converted into a contract of guarantee. If the depositions and memoranda objected to at the trial, were' introduced and relied upon for this purpose, changing as they would the legal effect of a written contract, they are not warranted by the law of evidence, and are clearly inadmissible. And we are well satisfied that if the intestate was not liable as indorser, neither he, nor the defendant representing him, can be charged in this action. If he was, either count in the plaintiff’s declaration is sufficient. Upon this point we entertain not the least doubt. The note was negotiable. The intestate was the payee ; and he indorsed it in blank. Nothing was written over his name, at the time or since ; nor does it appéar that he requested or authorized the making of any memorandum on the note. That was made by Howard, under the direction of Barnard, as their sense of what the intestate had agreed.It constituted no part of his contract. By his name on the back in blank, he assumed the liability of an indorser of a negotiable note, made payable to himself. The memorandum is not in itself evidence but may be used by the witnesses to refresh their memory. Unless demand and notice was waived by the indorser, there is no sufficient evidence of either to charge him. The case therefore *219turns upon the question, whether it does appear by competent proof, that demand and notice was waived. This may be proved by parol. It does not change the character of the contract, or convert it into one of a different species. It only relinquishes a condition, to which the party would otherwise have been entitled. It does not appear that Howard in his memorandum on the note, used the language of the intestate. What lip did agree, is stated by Howard and by Barnard in their depositions. They state from recollection, agree in their testimony, and neither appears to be at a loss os to what, passed at the, time of the indorsement. The intestate was indebted to Barnard. The note, payable on demand, bad been then given over five years. It bad been some time prior in the hands of Barnard. Tlio intestate urged him to receive it in payment, and pass it to his credit. Barnard' was reluctant. It had been long due; and it is evident from the testimony that he relied only upon the credit of the intestate. But upon the urgent solicitation of the latter, and upon his express assurance and engagement, that if the maker did not pay the note tlio next time he came to Boston, he, the intestate, would tlio next time he came ; Barnard received the note, and passed it to his credit. We are of opinion that the inference reasonably and justly to bo drawn from this testimony is, that the legal steps of demand and notice, otherwise necessary to charge an indorser, wore waived by the intestate. To hold his estate discharged from this liability would, upon these facts, unjustly throw a loss upon Barnard, or his assignee, without any fault or negligence on their part. Barnard did, in relation to the note, every tiling the parlies could have contemplated. Howard thinks ho wrote to the maker at the time of the indorsement. At any rate he is sure that he saw the note when he came to Boston, and that payment was demanded of him by Barnard. He did not pay. Then the intestate was to pay when he came to Boston ; and wo think the fair implication is, that, he waived notice of the failure of the maker to pay, until he could be apprized of it on his arrival in Boston. Boyd v. Cleaveland, 4 Pick. 525, is a strong authority for the plaintiff; and it is a case decidedly in point. It is not distinguishable from the case before us. It did not convert a contract of guarantee into evidence of *220a waiver of demand and notice. Cleaveland was an indorser; not a guarantee. He could not be made such by parol; but from what passed between him and Boyd, when the latter received the note, he was deemed, and we think properly, to have waived his right to demand and notice. It is not necessary that such waiver should be direct and positive. It may result by implication from usage, or from any understanding between the parties, which is of a character to satisfy the mind that a waiver was intended.

The nonsuit is taken off, and a default is to be entered.

Defendant defaulted,