Irish v. Cutter

31 Me. 536

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1850
• Status: Published

Opinion

S hurley, C. J.

When a person not a party to it indorses his name in blank upon the back of a negotiable promissory note at the time of making, or subsequently as of that time to give it currency, and before it has been endorsed by the payee, the presumption of law is, that he designed to become an original promisor. Moies v. Bird, 11 Mass. 436; Chaffee v. Jones, 19 Pick. 260; Austin v. Boyd, 24 Pick. 64; Martin v. Bird, 11 N. H. 385; Strong v. Ricker, 16 Verm. 554; Hough v. Gray, 19 Wend. 202.

When such an indorsement is made for a valuable consideration at a subsequent time, the presumption of law is, that he - intended to become a guarantor of the final payment of the note. Ulen v. Kittredge, 7 Mass. 233; Tenney v. Prince, 4 Pick. 385; Oxford Bank v. Haynes, 8 Pick. 423; Beckwith v. Angell, 6 Conn. 315; Champion v. Griffith, 13 Ohio, 228; Camden v. McCoy, 3 Scam. 437; Jordan v. Garnett, 3 Ala. 610.

In this case the indorsement was made by the defendant for a valuable consideration, received of George Abbott, after the note was made, and before it had become payable or been indorsed by the promisee, with the, word holden added to his name. That word would render the liability assumed, an absolute one. Bean v. Arnold, 16 Maine, 251; Blanchard v. Wood, 26 Maine, 358.

The defendant must therefore be regarded as an absolute guarantor to Abbott, that the note shall be paid. There is no indication that he intended to make himself thus liable to any other person than the one, with whom he made his contract. The law will supply the proper words to carry into effect his contract as a guarantor, and those thus supplied, with the word holden used by him, will make his contract similar in terms to that of the defendant in the case of Springer v. Hutchinson, 19 Maine, 359, which was decided not to be negotiable.

Neither the plaintiff, nor Severance, for whose benefit this suit was commenced, can maintain an action upon that guaranty. Plaintiff nonsuit.