3 Mich. 188 | Mich. | 1854
By the Court,
The liability of the defendant depends upon whether the guaranty is negotiable.
Courts have sometimes evaded the real difficulties in the way of maintaining the negotiability of such contracts, by holding that a guaranty of payment endorsed on the back of a negotiable note, at the time it was made, rendered the guarantor liable to the payee, and to every subsequent bona fide holder, as a joint and several maker of the note. This was the doctrine of Hough vs. Gray, 19 Wend. 202; Ketch-
Manrow vs. Durham, 3 Hill, 584, and Curtis vs. Brown, 2 Barb. S. C. R., went one step farther, and held the guarantor liable as a joint maker, even where the guaranty was endorsed after the making of the note, but before its maturity.
The case of Jones us. Palmer, determined by this Court, (1 Doug. Mich. R. 379,) assumes, although it does not expressly decide, the contraiy. I confess I have always been unable to perceive any good ground for the distinction which has sometimes been made between cotemporaneous and subsequent guaranties. I never could see why the nature and effect of the contract should be .made to depend upon the time when it was made. It seems to me that the only real distinction between them is, that in the one case the consideration of the note will support the guaranty; in the other, a new consideration is required. (1 Parsons on Contr. 496.)
The doctrine we are considering has always been made forest upon the assumption that the maker and guarantor of a note both promise the same thing, viz: absolutely and unconditionally to pay the amount of the note at its maturity, and that therefore their contracts are identical. See Luqueer vs. Prosser, 1 Hill; Miller vs. Gaston, 2 Ib. 190. This assumption is not true. The maker promises that he will pay the-amount of .the note, when due, at all events. And this,, though in signing a joint and several note, he adds “ surety to his signature. (Story on Prom. Notes, § 157.) This liability is primary, (as to the payee,) absolute, unconditional;, not dependent upon any contingency. A guarantor promises that the maker shall pay, and that if the maker does-not, he will. The obligation is secondary and collateral to-that of the maker in so far as it is an obligation to pay, contingent upon the maker’s default. And if, as the de
They are without precedent to rest upon in English jurisprudence. It has sometimes been supposed that they wére supported by Hunt vs. Adams, 5 Mass. R. 358, and White vs. Howland, 9 Ib. 314. If these cases are in point, (and I think they are not, for each was based upon an absolute promise to pay the note,) they have been overruled by Oxford Bank vs. Haynes, 8 Pick. 423, and Whiton vs. Mears, 11 Metc. 563, upon a view, however, of the nature of the contract of guar
Indeed,' we think it may almost be said, that the doctrine that a guarantor was liable as a maker, originated in and has always been confined to New York. Even there it is now wholly repudiated and overthrown by Brown vs. Curtis, 2 Comst. 225; Durham vs. Manrow, Ib. 533; Brewster vs. Silence, 11 Barb. S. C. R. 144; and Hall vs. Farmer, 5 Denio, 484, and 2 Comst. 553; the two last of which cases are upon contemporaneous guaranties. See also Weed vs. Clark, 4 Sand. S. C. R. 31. And it may be added, as tending to show how strong are the convictions of the New York Courts, that the earlier decisions in that State were a departure from sound principle; that upon the construction they now give to the contract of guaranty, they held it to be a promise to answer for the debt or default of another, therefore directly within the purview of their statute of frauds, which requires the consideration to be expressed on its face. For these reasons we are of opinion, overruling Higgins vs. Watson, that the negotiability of the instrument on which this action is founded, cannot be sustained on the ground that it is a promissory note.
We have struggled hard to sustain its' negotiability as a guaranty, but there is an insurmountable weight of authority against it, and we are unable to discover any safe ground consistent with time-honored and long established principles of law upon which the negotiability of such instruments can be upheld. (Belcher vs. Smith, 7 Cush. 482; Springer vs. Hutchinson, 19 Maine R. 359; Irish vs. Cutter, 31 Ib. 536; True vs. Fuller, 21 Pick. 140; Taylor vs. Binney, 7 Mass. R. 479; Lamourieux vs. Hewitt, 5 Wend. 307; McDoal vs. Yeomans, 8 Watts, 361; Canfield vs. Vaughan, 8 Martin, 682; Upham vs. Prince, 12 Mass. R. 14; Miller vs. Gaston, 2 Hill, 188; Watson vs. McLaren, 19 Wend. 557; McLaren vs. Watson, 26 Wend. 425; Greens vs. Dodge, 2 Ohio R. 430;
It must, therefore, be certified to the Court below as . the opinion of this Court, that upon the facts found, the plaintiff is not entitled to recover in this action.