Clarke v. Smith & Parke

2 Cal. 605

• Court: California Supreme Court
• Decided: October 15, 1852
• Status: Published

Opinion

Heydeneeldt, Justice,

delivered the opinion of the Court, with whom Murray, Chief Justice, concurred.

The note sued on was given by Smith, one of the defendants, payable to the plaintiff; and before it was delivered to the plaintiff, it was indorsed by the defendant Parke.

These facts are set out in the declaration, and the judgment by default admits its averments to be true..

It is very evident, that Parke was a guarantor of the note; and although, prima facie, he would be presumed to be an accommodation indorser for the payee, and therefore not liable to him; yet upon proof that such was not the intent with which he acted, but that his design was to be a surety or guarantor for the maker, his liability to the payee is beyond question. The default, upon proper averments, dispenses with this proof; and the judgment is consequently affirmed with costs.