1 Ala. 471 | Ala. | 1840
— The special count in this case, is framed on the supposition, that the undertaking by the defendants in error, is an absolute and unconditional promise, to pay the amount of the promissory note presently.
The contract may be said to consist of two terms, which must be considered together, and effect, if possible, be given to both of them. First, it is an assignment of the note. This conveys the legal title to the note, and by our law, if not restrained by any other part of the contract, would impose a conditional
The first count of the declaration, supposes the contract to be a mere promise to pay the debt presently, without condition or qualification. As the note was past due when it was assigned, the time of payment is evidently postponed, until the ascertainment of the fact of the ability of the maker to pay. This fact could have been ascertained, either by the ineffectual prosecution of a suit in the ordinary mode, or by proof of insolvency, or inability to pay. The difference between the guaranty in this ease, and an assignment under the statute, is, that no obligation is imposed thereby, to bring suit at the first term to which suit can be brought, or indeed to bring suit at all. It follows that the declaration is defective, in not averring that the maker of the note is unable to pay the 'same, and the demurrer was, therefore, correctly sustained. It is supposed by the counsel for the defendant in error, that the addition of the words, “ waiving demand and notice,” characterizes the contract, and shews that it was an absolute promise to pay. It is probable, that these words were added, under the mistaken supposition, that a demand and notice of refusal to pay, was necessary to fix the liability of the guarantor. But whether such be the fact or not, it is impossible to put the construction contended for on these words, as it is inconceivable on that hypothesis, why the Darties
In Allen v. Rightmere, (20th Johnson Rep. 365,) the contract was, "I sell, assign, and guaranty the payment of the within note.” The note was not due at the time of the assignment, and the court held the undertaking to be an absolute promise to pay, at the maturity of the note. It will be observed, that in the State of New York, the condition on which an indorser is liable, is that demand be made at the maturity of the note, and notice given of non-payment. This the guaranty dispensed with, and Chief Justice Spencer held that the undertaking was not conditional, but absolute; “.that the maker shall pay the note when due, or that the defendant will himself pay it.” See also the President and Lireetors of the Bank of New York v. Livingston, (2 Johnson cases 409.)
The parties having gone to the jury on the common counts, the eourt instructed the jury that the plaintiff could not recover without proving that suit had been brought against the maker of the note, and prosecuted to insolvency; in this the court erred; the charge should have been that the plaintiff was entitled to recover on proof that .the maker was unable to pay the amount of the note, and for this error the judgment must be reversed and the cause remanded.
