Wilson v. Martin

| Pa. | Jul 2, 1873

The opinion of the court was delivered, July 2d 1873, by

Mercur, J. —

The plaintiff claimed that the defendant’s testator was liable to him, as surety or guarantor, for the payment of a note under seal, which he held against three joint and several makers. He gave in evidence the endorsement of the testator, in blank, upon the back of the note, and then parol evidence of the agreement of the testator to become responsible for its payment. The court held the evidence insufficient, and directed the jury to find for the defendant. This instruction is assigned for error.

The first section of the Act of April 26th 1855, Purd. Dig. 724, pi. 4, entitled “ A Supplement to the Act for the Prevention of Frauds and Perjuries, passed 21st day of March 1772,” has several times been considered by this court. Its language is clear and explicit, that no action shall be brought “ whereby to charge the defendant upon any special promise to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him authorized.” The court has uniformly manifested a determination to enforce the provisions of the act for the purposes indicated in its title.

Giving to the parol testimony the force claimed for it by the plaintiff, is, in effect, establishing the defendant’s liability wholly by parol. The note was past due when the testator' endorsed it. Even if the testator had written his name at the foot of the note, where it is claimed he would have placed it if the space had permitted, the writing would not have shown the conditional obligation which the testator agreed to assume. If, however, he had done so, the writing would have shown an absolute promise, and the requirements of the statute would have been complied with. The case stands upon different grounds. The endorsement in blank of a note not negotiable is not such written evidence of a promise to pay as the statute, requires: Jack v. Morrison, 12 Wright 113; nor can it be construed into a parol contract of guaranty: Id. The case of Schafer v. Farmers’ and Mechanics’ Bank, 9 P. F. Smith 144, was twice argued, and the court unanimously held, that an endorsement is not such a note in writing as is required by the aforesaid statute, and that proof of a collateral liability for the debt of the maker, different from that which the endorsement imports, cannot be made by parol. In Murray v. McKee, 10 P. F. Smith 35, the court unanimously reaffirmed those decisions, and, in giving the opinion of the court, Mr. Justice Sharswood says : “ The question ought now, therefore, to be considered as entirely at rest in this state.”

The plaintiff derives no aid from this endorsement, and therefore attempts to establish a liability wholly by parol. This cannot be done. The learned judge was correct in his instructions.

Judgment affirmed.