38 Mass. 140 | Mass. | 1838
delivered the opinion of the Court. The facts bearing upon this question may be thus stated. Morse made three promissory notes to Elisha Fuller, or his order, payable in two, three and five years respectively from date, and gave a mortgage to secure the payment of them. The notes were indorsed in blank by the payee. On the same notes was indorsed a guaranty in this form : “ I guaranty the payment of semiannual interest on this note, as well as the principal,” and signed by the defendant. The notes thus indorsed were transferred, and the mortgage assigned. The mortgaged premises were entered on for breach of condition, and the mortgage foreclosed. The notes have regularly come to the hands of the plaintiff
The Court are of opinion, that the plaintiff is not entitled to recover, because the guaranty in question was not made to him, or whilst he was .holder of the note ; that it was not negotiable in itself, and was not made so by being written upon and intended to secure a negotiable instrument. This instrument being filled up and signed, is complete in itself, and it cannot be altered, either by striking out words so as to convert it into a general indorsement, or by filling up, as in case of a blank udorsement. In the latter case, an .ndorser, by leaving a
This guaranty expresses no consideration, nor does it name any person as the guarantee, to whom it is made. But suppose these could be supplied by parol proof, it could only enure to the person who was the holder at the time the guaranty was given, who was not the plaintiff.
Had the defendant intended, by the credit of his name, to give a general currency to the note, as a negotiable security,, there was no reason why he should not have indorsed it generally, in which case he would have been responsible to any person who might afterwards become the holder. As it is, it is no more a negotiable promise, than if it had been written on a separate paper, referring to the note, and guarantying it to the then holder. Tyler v. Binney, 7 Mass. R. 479 ; Lamourieux v. Hewit, 5 Wend. 307.
Plaintiff nonsuit.
