Davis & Co. v. Campbell

3 Stew. 319

Opinion

By JUDGE COLLIER.

The indorsement in this case cannot be considered as a mere transfer of the payee’s interest in the note, with an implied agreement to be liable to the indorsee, upon a demand, refusal and notice. It certainly contains an understanding on the part of the in-dorser to be liable upon a contingency, somewhat variant from the condition which the law annexes to an ordinary indorsement, and imposes upon the indorsee, if he would coerce payment from the indorser, the necessity of shewing the inability of the maker to pay, or something of an equivalent import. If it was the intenlion of the indorser to make himself liable, on the indorsee’s complying with the conditions which tacitly attach themselves to inddrse-menlsof a general character, why Was he so particular as to express the condition of Ilis liability. The word ‘fail,* which is expressive ot the condition, was not used as synonymous with inability, but is used in that sense in which mercantile men generally understand it, as conveying an idea of insolvency, ora want of resources to meet engagements. In this sense, it was doubtless understood by the parties; to suppose otherwise, would render the condition of the indorsement totally useless. The obligation then incurred by the indorser, makes him chargeable to the in-dorsee, upon proof of the inability of the maker to paj^, as ascertained by suit or otherwise.

The contract being different from that of a general in-dorsement, it would follow that the plaintiff cannot recover upon a declaration, applying alone to that description of contract. It is a rule of very general application in pleading, that the allégala and probata must correspond. It is not competent to set forth one contract and recover'upon proof shewing one entirely different. If the drawee makes a conditional acceptance, his acceptance must be declared on specially, with an averment that the condition has been performed.

a So a condition prece dent, or a provision or other matter which qualifies the contract, or goes in discharge of the liability of the defendant, must be atated by wav of averment: see Ferguson v. Cappeon’s administratrix b I have not searched into authority sufficiently to find an adjudication similar in point of fact, but the cases cited seem to be analogous in principle. The rule with regard to the description of contracts is, that they must be set out literally, or according to their legal effict, and if the latter mode of pleading is adopted, it is held that any substantial variance is fatal.c The indorsement offered in evidence, was substantially different from that declared on, and its rejection was proper.

With regard to the subsequent promise of the defendant to pay the note, it is sufficient to remark, that the declaration was not adapted to such a stale of fact. The judgment is therefore affirmed.

Judgment affirmed.

Chitty on bills, 181.

Har. & J. 401.

4 Hals. 315.