Curtis v. Smallman

14 Wend. 231

Opinion

By the Court,

Sutherland, J.

I think the court of common pleas erred. The note or due bill must be considered as bearing date the 24th of June. It was due immediately, that is, on demand. The guaranty bore date the 27th of June, three days afterwards. The natural construction of the terms of the warranty, I think is, that the note should be a good and available one to the plaintiff; not that it should be paid on demand, but that payment of it might be enforced. This would be the import of these terms in ordinary parlance. If an individual, upon inquiry, should say that a note of a particular individual was good, I apprehend all he would be understood to mean would be, that the maker was of unquestionable responsibility, not that his note would be promptly paid at maturity. A note is good, when the maker is solvent and able to pay it, and a warranty that it is good expresses that and no more; and it is incumbent upon the holder of such a note and guaranty, in order to charge the guarantor, to prove by legal evidence that the maker was not good, and that payment of the note could not be enforced from him. When the construction of the guaranty is once settled, there is no doubt as to the rule of law applicable to it. 19 Johns. R. 69. 4 Cowen, 173. 20 Johns. R. 365. 1 Wendell, 460. 11 id. 100, and the authorities referred to in those cases.

Judgment of common pleas reversed.