Erwin v. Lamborn

1 Del. 125

• Court: Superior Court of Delaware
• Decided: July 1, 1832
• Status: Published

Opinion

Chief Justice Clayton

charged the jury to this effect:

That if they thought this note a continuation of the old transaction, and the parties did not intend to change the nature of the security, but that the note was made payable to Erwin by mistake, the plff. could not recover, as no demand and notice were proved.

That if the jury should think the parties intended to change the nature of the security, the effect of this note and indorsement would be to make Cyrus Lamborn a general surety or guarantor, and the plff. would be entitled to write over his blank indorsement a promise consistent with this new form of obligation. But as a guarantor deft, was entitled to notice of Eli Lamborn’s default to pay unless an insolvency is proved, which will excuse the want of notice. Brooks vs. Morgan, ante 123.

The deft, had a verdict.