125 Mass. 134 | Mass. | 1878
It has been repeatedly held in this Commonwealth, before the passage of the St. of 1874, e. 404, that if a person, not a party to a note, puts his name upon the back of it at its inception, it is his note, and he is an original promisor upon it. In this case, the defendant did not put his name upon the back of the note at its inception, but did so after its maturity, when it had become an overdue and dishonored note. This was done upon a sufficient consideration, and if nothing more had been done by the defendant, his relation to the note, and the obligation created by his signature, might have presented some questions of embarrassment. But this is not all that was done by him. He personally altered the face of the note, by which he changed the terms of the contract. Over the word “ ten,” which expressed the rate of interest in the original contract, he placed the figures “ 7-|,” for the purpose of indicating that he was to pay the principal of that note and a future interest at the rate of 7|- per cent, per annum. At the same time he paid the arrears of interest due upon the note at the rate stipulated before he altered the terms of the contract; and he subsequently recognized the transaction by the payment of one instalment of interest at the rate at which he had fixed it by the alteration of the contract. Whether his alteration of the contract, making it less onerous to the original parties to it, affected its validity as against them, is unimportant in the determination of this issue-The facts found in this case show that he intended to adopt the words of that contract, changed by himself to express the contract into which he was entering, and placed his name upon the
An objection is made that the agreement of guaranty was conditioned upon receiving a stipulated notice; and that, inasmuch as that condition was not inserted in the writing itself, it therefore was not a sufficient writing to hold the party within the statute of frauds. The conclusive answer to this is, that the paper which he adopted and signed as a contract is complete in itself, and it is never competent to show in an action at law that there were other and different oral agreements from those which the contract, complete in itself, contains. If any oral agreement, founded upon such consideration as would make it a valid contract, independently of the written contract, was entered into between the parties, it was wholly collateral and could not be pleaded in bar of this suit, but damages for its breach must be sought in an independent suit. Wright v. Morse, 9 Gray, 339. Lake v. Stetson, 13 Gray, 310, note. Essex Qo. v. Edmands, ubi supra. Smith v. Bartholomew, 1 Met. 276.
In point of fact, the presiding judge found that the plaintiff agreed to give, and did give, the defendant sixty days’ instead of six months’ notice of his intention to enforce the contract. Such finding, however, is unimportant, inasmuch as an agreement to forbear to enforce the performance of a contract complete in itself can never be pleaded ir bar to a suit upon the contract.
Exceptions overruled.
