44 A. 516 | N.H. | 1895
It is not material whether the defendants Priest and Bell were liable to the plaintiffs upon the bond or not. There is no question but that McKellar was indebted to the plaintiffs, and was liable upon the bond which was surrendered upon the giving of the note in suit. His liability and the surrender of the bond was a sufficient consideration for the note; and a distinct consideration moving from the plaintiffs to the defendants, who entered into the undertaking prior to the delivery of the note to the payee, is unnecessary. In Savage v. Fox,
The defendants, having signed in blank upon the back of the note before its delivery to the payee, are, by the law of this state, liable as original promisors, and are not indorsers entitled to notice. Phillips v. Johnson,
The plaintiffs' further position, that under Massachusetts law the defendants would not be entitled to notice, is equally unfounded. It is undoubtedly true that where the note is an accommodation note by the maker for the benefit of the indorser, the indorser is not entitled to notice of non-payment (Sto. Pr. Notes, s. 268), for the reason that as primarily, between him and the maker, the indorser is bound to pay the note, he cannot be injured by want of notice of non-payment by the maker. Such is not the present case. The debt was primarily McKellar's. It was one which, as between him and the defendants, McKellar was bound to pay; and which, if they paid, they could exact from him. In the second place, the plaintiffs agreed to accept in exchange for the bond the conditional liability of the defendants instead of a primary and original one. The defendants were sureties for McKellar on the bond. They were sureties on the note, in fact. They were not made principal debtors by a change in form or renewal of their liability.
Before the maturity of the note, by an agreement with McKellar, the plaintiffs extended the time of payment three months. It is conceded that this extension, if by a valid agreement, would release the defendants. But as this is an agreed case and the parties are not agreed as to the meaning of the case in this respect, justice might require, in case the decision turned upon this point, that the parties should be relieved from their agreement as to this and be permitted to try the question of the validity of the agreement. The view we have taken of the foregoing questions renders, it unnecessary to determine this question, or to consider the effect of the erasure of the indorsements of payments from the note. In accordance with the stipulations of the reserved case, there should be
Judgment for the defendants.
All concurred. *331