Columbiana Bank v. Dixon

1 Tapp. Rep. 327

Opinion

President.

Some doubt was entertained, whether the writing set out on oyer, was to be taken and considered part of the plaintiff’s declaration. It is not a deed of which profert has been made, but a writing which he might give in evidence to support his action. The defendant most clearly had no right to oyer of it; but the plaintiff, instead of demurring to the prayer of oyer, grants it; and the writing is set out as part of the plaintiff’s declaration and demurred to. The plaintiff has joined in demurrer. Thus both parties have placed it jj¡je record as a deed upon which the plaintiff’s action is founded. If the plaintiffs grant oyer of any writing of which the defendant is not entitled to oyer, it seems that the Court ought to consider the pleading as regular, although the effect of a demurrer, under such circumstances, is much the same as a demurrer to evidence, and perhaps only to a part of the evidence the plaintiffs intended to rely on: yet, as they have consented to rest their claim on that ground alone, it must be taken and considered as the sole ground on which it could be supported. — 1 Saund 9, n. — Doug. 467, Sal. 498. The question, then, is, whether the writing set out is sufficient evidence to support the plaintiffs’ action. The plaintiffs raise their assumpsit on a loaning to Rogers & Co. at the request of the defendant; and on the defendant’s promise to be accountable to them for the money so loaned, the declaration supposes an original undertaking to pay the money at all events, and that the loan was made on the defendant’s credit and responsibility. If such was the case, it seems that the loan to Rogers and Co. would be a sufficient consideration to support the defendant’s promise, and that the promise need not be in writing, the statute of frauds not extending to an original undertaking to pay for money loaned to another, but only to those cases where the promise is to pay the debt of another, in case the debtor does not pay it; that is, to collateral undertakings. But if this was declared on as a collateral undertaking to pay the debt of Rodgers and Co., the objection made by the defendant’s counsel could not prevail, for the undertaking, such as it is, is in writing, and the loan to Rogers and Co. would be as good a consideration to support a collateral as an original undertaking to pay the debt. — The note is made by Rodgers and Co. payable to David Scott or order. The debt of Rogers and Co. was contracted with Seott. If this note is evidence of a loan to the makers, it is evidence that such loan was made by Scott. No endorsement appears to have been made of the note by Scott — no order to Rogers and Co. to pay the amount of the note to the plaintiffs. The writing on the note to which the defendant’s signature is affixed, if to be considered as an undertaking to pay the amount of the note, is an undertaking to Seott; and if such undertaking could be negotiated like a bill of exchange, so as to give to the endorsee a right of action in his own name, it does not appear to have been so negotiated, nor that the plaintiffs have any. right to claim a benefit from such undertaking. We are told, that in truth, the note was endorsed by Scott to Marshall, and by Marshall to the plaintiffs: but this does not appear on the record. - on .,. If the defendant has recited but a part of the writing, the plaintiff should have procured it to be truly enrolled, if he had intended to avail himself of the parts omitted. 2d Stra. 1241, 5th Com. Dig. 479, 480, and 481. It may well be doubted, whether the “credit the drawer” on any reasonable construction of it, does contain a promise to be accountable to any one for the amount of the note; and if it did, it would be a collateral guarantee, which could not be negotiated by endorsement, so as to transfer to successive endorsees a right of action upon it. The defendant is' neither a drawer or endorser of this note — of course he is not chargeable as one of the regular parties to it — he directs credit to be given to the drawer, but to whom this direction is given is uncertain — he had no right, interest or authority — his order, then, would seem to be altogether nugatory. If it can be considered as a promise to be responsible for Rogers and Co. it may be asked in what event responsible ? If the note was not paid according to the tenor and effect of it? Or if Rogers & Co. should prove insolvent and unable to pay? If, then,’ the plaintiffs had shewn a right of action on the note as endorsees, it would by no means follow, that they could take advantage of this order as a guaranty; much less would it follow that they could be permitted to sue on it as an original undertaking to themselves, to pay the amount of the note on the failure of Rogers and Co. to do so. I have not met with any case where a person has been holden responsible as the guarantee of a note without an express promise, (the cases on this subject are collected in a note to Chitty on bills 113) to that effect. The law does not imply a promise to pay the debt of another, in any case; hence it is necessry to set forth ■ and prove an express promise to pay. It is said, by Chief Justice Marshall, in the case of Russell vs. Clark’s executors, 7th Cranch 90, that “the law will subject a man, having no interest in the transaction, to pay the debt of another, only when his undertaking manifests a clear intention to bind himself for that debt. Words of doubtful import ought not, it is conceived, to receive that construction. It is the duty of the individual, who contracts'with one man on the credit of another, not to trust to ambiguous phrases and strained constructions, but to require an explicit and plain declaration of the obligation he is about to assume.” These remarks may well apply to this case, but, it is not necessary to decide whether the order given by the defendant was, as Scott, a collateral guaranty of tbe solvency or punctual- % °f Rogers and Co. Whether it was to him an express promise or not, the demurrer must be sustained, because R appears that the plaintiffs have no right of action against the defendant. — Demurrer sustained — judgment for defendant for costs.