Stevens v. Gibson

69 Vt. 142 | Vt. | 1896

Rowele, J.

The note in suit reads, “I promise to pay,” and is signed by four — two Gibsons other than the defendant, and Fargo. On the face of it the note is, in legal effect, joint and several, and the signers are makers. But the defendant seeks by his plea to stand as a conditional guarantor, damnified for want of notice of the principals’ default.

If the plea is construed to allege that the defendant signed the note without any consideration whatever, as he contends it should be, it is repugnant, as it also alleges that he signed it at the request of the plaintiff and the other Gibsons, “to guarantee, and as a guarantor, to the plaintiff that he would pay said note when it became due if they did not,” and that the plaintiff received the note and loaned the money with that understanding. This is certainly a sufficient consideration to support the defendant’s undertaking. But when a pleading is capable of different meanings, it clashes with no rule of construction to construe it in the sense in which the pleader must be understood to have construed it, supposing him to have intended it to be consistent with itself. Royce v. Maloney, 58 Vt. 437, 445. Applying this rule, it is clear that the pleader meant that the defendant signed without consideration in that he received none of the money for which the note was given; for the plea alleges that the money was loaned to the other Gibsons, and was for their sole use and benefit, to the knowledge of the plaintiff when she made the loan and took the note.

The next question is whether the guaranty set up is conditional or absolute. The defendant claims that it is conditional, and relies largely on Sandford v. Norton, 14 Vt. 228, to show it. That case seems not to have been very fully reported. It shows that the defendant offered to prove by parol that after the note passed from the payee’s hands, and before it became due, he put his name on the back of it as guarantor for the maker to Raymond, pursuant to an agreement then made between them without the concurrence of the maker; but the terms of that agreement are not stated, except that the court says in the opinion that if the testimony offered was credited, the defendant was in no sense a joint maker, but merely, a collateral guarantor, and undertook to pay the note if the maker did not. But in Sylvester v. Downer, 20 Vt. 355, Judge Redfield, who delivered the opinion in Sandford v. Norton, says that judgment was reversed in that case because the court excluded the testimony offered to show that at the time the defendant put his name on the back of the note he was understood to assume only the obligation of a common indorser, and therefore was entitled to demand and notice. He says he presided at the next trial, and admitted the testimony, and that the plaintiff obtained a verdict by showing demand and notice. The case went to the supreme court from that trial, and is reported in 17 Vt. 285. Williams, C. J., who delivered the opinion then, said it was to be taken that the testimony established that the defendant was not a maker nor a guarantor but an indorser. So that case is not much in point for the defendant in this case; but Noyes & Co. v. Nichols, 28 Vt. 159, is much in point against him. The language of the guaranty there was, “I will be accountable to you for all his contracts or agreements, as you and he may agree; and in case he does not fulfil them as agreed, I will guarantee the payment thereof.” This was held to be an absolute guaranty. The court said that the addition of the words, “in case he does not fulfil them as agreed,” did not alter the nature of the undertaking, nor impose any duties on the plaintiffs that would not exist without them, and' that demand and notice were not necessary. That guaranty and this are alike in legal effect.

Judgment affirmed and catt.se remanded.