Kirschner v. Conklin

40 Conn. 77 | Conn. | 1873

Park, J.

In the case of Church v. Barlow, 9 Pick., 547, the court held that the relative rights and duties of parties who indorsed a promissory note for the accommodation of the maker are the same as in the case of a business note, so that the notice of the dishonor of such accommodation note having been given, a subsequent endorser who. takes up the note may recover of a prior indorser the whole amount paid, and not merely a contribution as in the case of sureties. The doctrine of this case is fully sustained by the following authorities: Shaw v. Knox, 98 Mass., 214; M'Donald v. Magruder, 3 Peters, 470; Wood v. Repold, 3 Harris & J., 125; Brown v. Mott, 7 Johns., 361; Clapp v. Rice, 13 Gray, 403; Howe v. Merrill, 5 Cush., 88; Talcott v. Cogswell, 3 Day, 512; Johnson v. Crane, 16 N. Hamp., 68.

There is no foundation in the case for the claim made by the defendant on the trial in the court below, that the relation of the plaintiff and defendant to the note in question was that of joint guarantors and co-sureties. The case expressly finds that there was no agreement between them when the original note was indorsed by them, or at the time of any of the subsequent renewals of the note, that they should hold any other relation towards each other than what would result from their being successive indorsers of the note for the accommodation of the maker. It is true that co-sureties are bound only to contribute equally to the debt they have jointly undertaken to pay, but in that case their undertaking must be joint, and not separate and successive, as in the case at bar. The plaintiff and defendant might have become joint indorsers if they had been so disposed. Their promise might have been a joint one, but they saw fit to indorse the note separately and successively in the usual mode. No communication took place between them which varies the legal liabilities such indorsements are known to create. The claim of the defendant is based upon the bare fact that these parties knew each other to be accommodation indorsers; but this fact falls far short of being sufficient to create an agreement between them to be jointly liable. Such knowledge is just as consistent with the theory of a separate -undertaking, as it is with that of a joint liability.

Indeed the case finds that the plaintiff never would have indorsed the original note or any of its renewals if he had not believed that the liability of the defendant on the notes was the same as it would have been on regular business paper, and that he indorsed the'notes relying upon the defendant’s responsibility as first indorser. Such being the case there could not have been an agreement between them to become jointly bound on the notes. Furthermore, when the defendant indorsed the original note it does not appear that he knew that the plaintiff was to be another, accommodation indorser. For aught that appears the application of the maker of the note to the plaintiff to become an indorser was all an after-thought. ,

We think it is clear that there was no joint undertaking between these parties, and we therefore do not advise a new trial.

. In this opinion the other judges concurred.