59 Mass. 80 - Howe v. Merrill — 59 Mass. 80

Edwin L. Howe vs. Arthur Merrill. A party, whose name appears on a note as second indorser, having been placed there by him at the request of the promisor, after the note has been negotiated, (the parties intending thereby to create only the liability of second indorser,) cannot be charged as a joint promisor or guarantor, although the first indorsement was forged. This action was brought to recover the amount of a promissory note, dated July 15th, 1848, and signed by Stevens Merrill, for $250, payable in ten days after date to the order of Daniel Prescott. On the back of the note were written, first, the name of Daniel Prescott, and under it that of the defendant. The trial was before Bigelow, J., in the court of common pleas. The plaintiff did not declare against the defendant, as an indorser, but sought to recover upon the testimony of one Drew, which was in substance as follows : “ I had lent Stevens Merrill two hundred and fifty dollars on thirty or sixty days, and had taken his note therefor, indorsed by Daniel Prescott. The note became due on Saturday the 15th of January, 1848, at which time I was sick at home. On the morning of that day, Stevens Merrill came to my house, and said he had a large amount to pay on that day, and should prefer not to pay the note until the following Monday. He said he did not wish to have me lose my indorser, and he had brought me another note on ten days; he had it made on ten days, because he did not wish to ask Prescott to indorse a note for less time, but he would pay it on Monday. The note was received, accordingly, as a substitute for the former. On the Monday or Tuesday following, I went to Stevens Merrill to get the money. I told him that I was pressed and must have it. Merrill was then confined to his house by illness. He said, in reply, that in an hour after he got out, I should have the money. Immediately, he added, ‘ I will get you the money now.’ Merrill then wrote a letter, addressed to the defendant, and, having sealed it and given it to me, told me to deliver it to the defendant, who would give me the money for the note. I went directly with the letter to Arthur Merrill, and delivered it to him. After reading the letter, he requested to be shown the note, which I produced and gave him. He looked at it and said : ‘ I have not got the money to-day, but come in to-morrow or next day, and I will give you the money for it.’ The defendant then said, 6 He asks me to indorse it; ’ and thereupon took his pen, wrote his name on the back of the note, and handed it to me, saying, ‘ Come in to-moirow and you may have the money.’ I then put the note in my pocket and went away. The note was subsequently passed by me to the plaintiff in payment of a debt.” The letter referred to from Stevens Merrill to the defendant, was as follows: “ Will you be so good as to indorse the note Dr. Drew has. He is a little anxious about it. You will not say any thing about it to any one. If you have the funds on hand, I should like to have you pay it, and I will arrange it with you in a few days.” It also appeared, that the name of Daniel Prescott, indorsed on the note, was a forgery by Stevens Merrill. Upon this evidence, the defendant contended that the action could not be maintained against him, as an original promisor or guarantor. But, for the purposes of the trial, the judge ruled otherwise, and so instructed the jury, who returned a verdict for the plaintiff, and the defendant excepted. H. W. Smith, for the defendant. T. Willey, for the plaintiff. — Shaw, C. J. (majority) Shaw, C. J. The jury having been instructed, that if they believed the facts stated by Drew, the plaintiff was entitled to recover, we are to look at that testimony, as fully stated in the bill of exceptions, to ascertain whether this direction was right. This is a suit against the defendant as a guarantor of the promissory note set out in the exceptions, which appears by the case to have been a note payable in ten days from date signed by Stevens Merrill, as maker, payable to Daniel Prescott, or order, and indorsed by Prescott in blank, and subsequently by the defendant, Arthur Merrill, in blank. No demand of the promisor, or notice to the indorser, was proved; and therefore no claim was made by the plaintiff to charge the defendant as indorser. This is an attempt to charge a second indorser as a guarantor. We are of opinion, that the action will not lie, for several reasons: I. It is no more competent to alter and vary the legal effect of a written instrument by paroi evidence, than to alter and change its express terms. On the face -of the paper, the defendant is liable as a second indorser, with the rights and privileges of that relation, and subject only to the obligations, which it imposes. One of the latter is, that the indorser is liable only on a condition, which, in this case, did not happen, oí a dishonor of the note by the promisor, and seasonable notice thereof to the indorser; but the attempt is to charge the indorser absolutely as a promisor or guarantor. All the cases, from Hunt v. Adams (5 Mass. 358,) down, it is believed, in which one has been so charged, are cases, where the name appears on the note, but not as a regular indorser. A second reason is, because, 2. The defendant’s name was not put upon the note, until it had been negotiated to a creditor; and the defendant can in no sense be regarded as an original party. Sampson v. Thornton, 3 Met. 275. He cannot be charged as upon a subsequent and separate contract of guaranty, for want of a consideration. 3. The testimony does not show, that the holder expected to obtain, or the defendant intended to give, any other obligation for the payment of the note, than that which would arise from his being a second indorser, liable for the payment, upon dishonor and notice. He said, “ I am requested to indorse it,” (the note) referring to the letter, and the proper mode, therefore, was to place his name as second indorser. It does not vary the result, that the name of the first indorser was forged. Each indorser guarantees the genuineness of the note by putting it in circulation, and is as much responsible for it, as if all the names on the note were genuine. Exceptions sustained.