Allen v. Brown

124 Mass. 77, 1878 Mass. LEXIS 230

Opinion

Soule, J.

The defendants put their names on the back of the note before it was delivered to the payee and became a binding contract. They must, therefore, be considered as original promisors, and paroi evidence was not admissible to show that this was not their real contract. Union Bank v. Willis, 8 Met, 504. Brown v. Butler, 99 Mass. 179. Way v. Butterworth, 108 Mass. 509.

The evidence offered of an extension of time given to the maker in which to pay the note, and of “ negligence and loches in other respects,” was not admissible. Assuming that the defendants were sureties only, and that the plaintiff knew it, he was not under any duty to them as regards promptness in enforcing the collection of the note. If he had made a valid contract, on which a remedy could have been had against him, by which he gave time to the principal on the note, without the knowledge or consent of the sureties, that would have discharged them. The defendants did not offer to prove that such contract had been made, but only an extension of time by delay. This, if proved, would not have constituted a defence. Hunt v. Bridgham, 2 Pick. 581. Horne v. Bodwell, 5 Gray, 457. Wilson v. Foot, 11 Met. 285. Agricultural Bank v. Bishop, 6 Gray, 317.

Exceptions overruled

Footnotes

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The St. of 1874, c. 404, which took effect on July 30, 1874, is as follows: “ All persons becoming parties to promissory notes payable on time by a signature in blank on the back thereof shall be entitled to notice of the non-payment thereof the lame as indorsers."