Goode v. Jones

9 Mo. 866 | Mo. | 1846

Napton, J.,

delivered the opinion of the court.

This was a suit originally brought before a justice of the peace, upon the following note:

“One day after date I promise and oblige myself, my heirs, &c., to pay or cause tobe paid unto Charles C. Jones, the just and full sum of one hundred and nine dollars sixty-one cents, for value received, as witness my hand and seal this twenty-second day of November, eighteen hundred and forty-three, with ten per cent, interest till paid.

William T. Jones, [seal.]”

Upon this instrument there was the following endorsement: “I assign the within note as security to Charles C. Jones, this 4th Dec’r, 1843. John Goode.”

The plaintiff obtained a judgment both before the justice, and in the circuit court, against both Goode & Jones, for the amount of the bond with interest.

Upon the trial in the circuit court, an objection was made to the reading of the endorsement upon the bond as evidence, but the objection was overruled and exceptions taken. It seems from the instructions given, that the bond was considered by the court as the bond of both Goode & Jones; the plaintiffs in error contending that the endorsement of Goode was but a guaranty and an undertaking entirely collateral to the obligation of William T. Jones.

The case of Hunt, adm’r. vs. Adams, (5 Mo. R. 359,) (6 Mass. R. 519,) is an authority to show, that where a party writes underneath a promissory note of another, the words, “I acknowledge myself holden as surety for the payment of the demand of the above note,” and such writing is executed at the same time the note is signed by the principal, and before the delivery of the same to the payee, such acknowledgment constitutes the person making it an original party to the contract.

The note in that case was construed as in effect a joint and several promise by the principal and surety. In the case now under consideration, the obligation of William T. Jones was executed on the 22d November, and the endorsement of Goode was executed on the 4th December. Upon its face this endorsement purports to be a collateral undertaking on the part of Goode to pay the debt of W. T. Jones, if said Jones shall fail to do so. Jones and Goode could not be sued in tíre same action as original promisors and parties to the same contract y the liability of Goode being merely collateral, the facts must be set forth and shown which make him liable.

The judgment is reversed and cause remanded.