63 Minn. 196 | Minn. | 1895
This was an action on two promissory notes, upon which defendant Lynn was guarantor, and the other defendants makers. The case comes here on appeal from an order sustaining a demurrer to defendants’ second defense, by which they claim that they were released by reason of the plaintiffs having previously obtained judgment upon the notes against another maker alone, who is not a party to this action.
The principle sought to be invoked is that joint contractors must all be sued together; that, if one is omitted, the nonjoinder may be pleaded in abatement. Hence, if the cause of action against one of the joint contractors is merged in a judgment, the others are released, because it is then impossible to maintain a joint action against all. We nowhere find in the pleadings anything to show that the notes sued on were in form joint, and not joint and several; and on that ground alone the order appealed from might be affirmed. But both sides have argued the case on the assumption that the notes are of the following tenor:
“$7,000.00. Chicago, March 20th, 1893. April first after date, for value received, we promise to pay to the order of Schultz Bros, seven thousand and no 100 dollars, at the Globe National Bank, with interest at — per cent, per annum, after —, until paid. World’s Fair Masonic Hotel Co., by J. C. Howard, President.”
Indorsed: “J. C. Howard, J. W. Nash, W. M. Brackett, J. W. Stone.
“I hereby guaranty the collection of the within note, if not paid at maturity. Value rec’d. W. H. Lynn.”
The other note is of like tenor, except as to amount and time of payment.
The judgment alleged in the answer to have been obtained on the notes in the state of Illinois was against the World’s Fair Masonic Hotel Company, an Illinois corporation. It stands admitted that those whose names are written on the back of the notes signed them at the date of their execution for the purpose of giving credit to the
Counsel’s further contention is that, whatever the form of the contract, when it appears that some of the obligors executed it merely as sureties for another who was the principal debtor, then, as between the former and the latter, the obligation is joint and several, and not joint. There is much force in this contention, for it would seem unreasonable that the obligee could not first proceed to enforce the contract against the principal obligor, without releasing the sureties ; and we do not remember of ever having met with a case in which it was held that such would be the effect of his doing so. But it is not necessary in this case to go that far.
We are of opinion that where, as here, some of the promisors sign a promissory note at the foot and others on the back, it should be held that the intention was that, as between the two classes of promisors, their obligation should be joint and several, and not joint. It is true that under the decisions of this court, where they sign their names under the circumstances which existed in this case, they are all original promisors or makers, whether their names are found at the foot or on the back of the note. But the fact cannot be ignored that by signing their names on the back of a note, instead of in the
We have examined our own decisions, as well as those of Massachusetts, from which we adopted the doctrine, holding that these “irregular indorsers” are original promisors or makers, and find nothing in any of them in conflict with the conclusion at which we have arrived. We find that, in defining the nature of their obligation, they are indiscriminately and interchangeably spoken of as “original promisors,” “joint makers,” and “joint and several makers.” But in all these cases the question before the court was not whether their obligation was joint, or joint and several, with that of the other parties to the paper, but whether it was that of maker or that of indorser or of guarantor; and these various expressions were used merely to state that their obligation was the former, and not the latter. We do not wish to be understood as holding that, as between themselves, the obligation of those who signed on the back of the
The conclusion at which we have arrived on this question renders it unnecessary to consider any other.
The result is that in all of the actions between these parties the orders appealed from are affirmed.
Buck, J., absent, took no part.
Statutes Illinois, c. 76, § 3 (Starr & Curtis’ Ed.)