Bryan v. Berry

6 Cal. 394

• Court: California Supreme Court
• Decided: July 1, 1856
• Status: Published

Opinions

Mr. Justice Heydenfeldt delivered the opinion of the Court.

Mr. Chief Justice Murray concurred.

This case presents one of the loosest transactions ever reported, upon which a case was brought into Court. There is really shown by the evidence no authority whatever by the defendant to any one to sign his name, unless that authority can be inferred from his silence when told that it had been signed. But as this has been passed upon as a fact, it is not necessary to review it, even although there is no conflicting evidence. It appears sufficiently clear that if any authority was given, it was confined to signing it as a surety, or in the common and ignorant use of the language on the occasion, as “ security.”

This implies a secondary liability, and it should so have appeared in some manner on the note, so as to entitle the surety to notice of demand upon the principals and non-payment by them. It is not material on what part of a note a secondary promissor places his name; if the character of his liability is made to appear, his rights are the same as those of an endorser. This is in strict conformity with the decisions we have heretofore made, and to which we were led by the conviction that the rules of law fixed a "uniform liability as to all such contracts, which disclose the intention of the contracting parties to be alike. In Riggs v. Waldo, 2 Cal. R., and in Gimmey v. Donnelly, 5 Cal. R., the names of the endorsers or guarantors were on the back of the note; while in the case of Lightstone v. Laurencel, 4 Cal., 277, the name of the surety is on the face of the note.

It is not, therefore, so much the position of the party’s name upon the paper which denotes his liability, (although it frequently does so,) but it is the intention with which he executes it, if such intention is made to appear by the note itself, which determines whether his liability is primary or secondary.

It is clear, in this case, that the authority given by the defendant was to sign his name as surety, and not as principal, and as the authority was not exercised in the manner delegated, the plaintiff cannot recover.

Judgment reversed.