99 A. 290 | N.H. | 1916
It is substantially conceded that the note in suit was a Maine contract and hence that it is to be governed by the law of that state. But as no direct evidence of what that law is was presented at the trial, the court ruled that the common law of this state applied, upon the theory that the common law of both states is presumably the same. No error is perceived in thus applying the law of the forum. Ela v. Ela,
The fact is found that no notice was given the defendant of the non-payment of the note by the makers until long after it became due; and the question presented is whether the defendant was entitled to such notice or whether for want thereof he was discharged from all liability on the note. In other words, the question argued by counsel which is decisive in the present suit is, whether the defendant merely assumed the liability of an indorser, entitled to notice, as he claims, or whether he was a joint maker with the Gerrys, not entitled to notice, as the plaintiff claims.
It appears from the evidence and the findings of the court that previous to the making of the note which is the basis, of this suit, Mr. Gerry was indebted to a certain bank and to both the plaintiff and the defendant in an amount aggregating some $3,000. The debt to the bank was secured by a real estate mortgage, while the other debts were unsecured. The plaintiff was anxious to get his pay, and Gerry agreed with him to raise the money necessary to liquidate his existing indebtedness by making a new mortgage on his real estate to secure a new note signed by himself which the defendant Garnsey was expected to sign as security. The plaintiff agreed to loan Gerry the money required for this purpose upon receiving the note and mortgage. He was unwilling to make the loan unless Gerry could get the defendant to sign the note "as security." Gerry saw the defendant in regard to the matter and the court finds that it was arranged between them that the defendant would sign the note. Subsequently, on the day of the date of the note, the plaintiff and Gerry went to a justice of the peace and had the note payable to the *258 defendant and the mortgage to secure it, also running to the defendant, drawn up. Gerry signed the note as maker and executed the mortgage, when the defendant was called in and signed his name on the back of the note and made an assignment of the mortgage to the plaintiff, who thereupon received the papers and paid to Gerry $3,000. There is no other evidence that the plaintiff, the defendant or Gerry understood that the defendant assumed or agreed to assume the liability of a maker of the note. The plaintiff in his testimony does not say that that was the intention of the parties or understood by them to be the effect of the indorsement, or that it was intended by any of the parties to impose upon the defendant any other obligation than that of an accommodation indorser. Nor does it appear that when the plaintiff told Gerry he would not loan him the money unless he got a signer he meant that the new party should be a maker. He desired some one to sign as security. And the defendant's indorsement was a signature which presumably made the note more secure. It is difficult to see how from these facts it could be inferred that it was the intention of the parties that the defendant should be held as a maker of the note. If such had been their intention, the note itself furnishes no evidence of it. The evidence does not support such a finding.
If the parol evidence received authorized such a finding, it would be necessary to determine, whether it was admissible for the purpose of changing a written contract, which apparently was one of a blank indorsement by the payee, so as to render him liable as a maker. Whether such evidence can be received has frequently been discussed by the court in this state (Barry v. Morse,
It is argued however that, as a matter of law, under the circumstances attending the signing of the note explanatory of the situation of the parties, the defendant must be held to be an original promisor. In support of this contention Martin v. Boyd,
As the payee of the note the defendant was authorized to transfer it, and as his connection with the transaction was for the accommodation of Gerry, the maker, he acted in accordance with the apparent intention of all the parties, when he indorsed it and allowed the plaintiff to have it as an indorsee, from whom Gerry received the money. The fact that he indorsed the note before it became effective does not demonstrate or make it necessary to hold that his relation to the note was not what it purported to be, but something else. He was not what is sometimes termed a stranger to the note; he was the payee with undoubted authority to indorse it for the benefit of the maker. This construction of the contract is in accordance with the decision in Perry v. Armstrong,
Even where the payee signed a statement on the back of the note that she was a principal maker and liable as such with one who signed the note at the bottom as a maker, it was held in Kistner v. Peters,
Upon the authorities and in reason it must be held that the defendant was an indorser and not the maker of the note and that for want of notice to him of its dishonor, he is not liable in this action.
It may also be noted that under the negotiable instruments act (Laws 1909, c. 123, ss. 63, 64), the defendant would seem to be liable as an indorser. Rockfield v. Bank,
Exception sustained.
All concurred. *261