Brent, J.,
delivered the opinion of the Court.
This action was instituted by Bosley, the appellee, to recover the amount of a promissory note, dated the 6th of April, 1868, for $1,000, payable twelve months after date, to his order. It is signed by Elisha J. Guyton and endorsed in blank by Charles T. Guyton and William M. Ives, the appellant,
The note was delivered to Bosley by Guyton, the drawer, to secure the payment of $1,000, which he had loaned him, and the principal question presented in the case is fhe character of Ives’ liability — the appellee, Bosley, claiming that he-is liable as maker of the note, while the appellant, Ives, insists that he only became liable as endorser.
After the plaintiff had proved the signatures to the note, and that they were all upon it when it was brought and delivered to him for the payment of the money which he then [269]*269loaned, the defendant offered to prove, by his own testimony, that at the time he placed his name upon the back of the note, he signed it as endorser. Upon objection being made by the plaintiff to this testimony, the Court ruled it inadmissible, and this forms the subject of the first bill of exceptions.
The obligation of Ives, as established by the-proof of the plaintiff, is clearly that of an original promissor. At the time of the transaction between Bosley and Guyton, which resulted in the loan to the latter of $1,000, the note in question was delivered to Bosley, filled up with his name, as payee, signed by E. J. Guyton, and endorsed in blank by Charles T. Guyton and Wm. M. Ives, the appellant. It was delivered to Bosley to secure the money which he had loaned, and was so accepted by him. These facts establish, by conclusion of law, the responsibility of Ives as a joint maker or original promissor. Essex Co. vs. Edmands, et al., 12 Gray, 274; Sylvester, Ex’r. vs. Downer, 20 Vermont, 356 ; Rey, et al. vs. Simpson, 22 How., 341; Sullivan vs. Violett and Dempsey, 6 Gill, 181. It is true, as was urged in the argument, that the contract entered into by a blank endorsement, will generally receive such a construction as will give effect to the intention of the parties, and that parol evidence will be admitted to show and explain what liabilities were intended to be assumed at the time of the transaction. Story on Prom. Notes, secs. 58, 59; 20 Verm., 359; 22 Howard, 351. Ifj however, the contract set up is different from that which attaches by presumption of law, it must be established by proof, showing that both parties, promissor and promissee, so intended and agreed. "Were it otherwise, a creditor who, in the utmost good faith, takes a note similar to the one in the present case, could readily be defrauded by an agreement between the drawer and a blank endorser. In the case of Rey, et al. vs. Simpson, above referred to, the Supreme Court of the United States say: “ "When a promissory note, made payable to a particular person or order, * * * is first endorsed by a third person, such third person is held to be an original promissor, [270]*270guarantor or endorser, according to the nature of the transaction and the understanding of the parties at the time the transaction took place. If he put his name on the back of the note at the time it was made, as surety for the maker and for his accommodation, to give him credit with the payee, or if he participated in the consideration for which the note was given, he must be considered a joint maker of the note. On the other hand, if his endorsement was subsequent to the making of the note, and he put his name there at the request of the maker, pursuant to a contract with the payee for further indulgence or forbearance, he can only be held as guarantor. But if the note was intended for discount, and he put his name on the back of it with the understanding of all the parties that his endorsement would be inoperative until it was endorsed by the payee, he would then be liable only as a second endorser in a commercial sense, and as such, would clearly be entitled to the privileges which belong to such endorsers.” Applying these principles to the present case, it is clear that the defendant cannot avoid the liability of a joint promissor, which the law has attached to his blank endorsement, unless he proves a different understanding of all the parties. The conclusion, therefore, necessarily follows, that testimony which does not tend to establish such a general understanding, is inadmissible. The proof, offered and rejected by the Court below, was, that Guyton, the drawer of the note, “ came to the store of the defendant and asked him to endorse the note in question for his, Guyton’s benefit, and that he signed his name on the back of said note as endorser.” It is not pretended that Bosley was present at any such agreement, or knew of it, or in any way assented to it.
The next exception is taken to the granting of the second prayer of the plaintiff, the rejection of the third, fourth and fifth prayers of the defendant, and the additional instruction given by the Court.
The objection to the second prayer of the plaintiff was abandoned at the argument, and this brings us to the con[271]*271sideration of the propriety of rejecting the third, fourth and fifth prayers offered by the defendant. Both the third and fourth prayers proceed upon the theory that the defendant, Ives, signed the note as endorser. There is no testimony in the case from which the jury would have been justified in reaching such a conclusion. All the proof fixes upon him the liability of maker, and in that capacity only was it attempted to hold him liable. As there was no testimony, therefore, to support these prayers, they were properly rejected.
The fifth prayer of the defendant, which presents the question whether the defendant was discharged from liability by an agreement of the plaintiff to allow the drawer of the note to retain the money after he had offered to pay it, could not have been granted ujjon the evidence in the case. The theory of the prayer is made to rest upon the fact that the defendant was security only, and submits to the jury to find whether he was so or not. This was clearly not a question proper to be submitted, upon the evidence in the case, to their finding. jSIo matter what may have been the equities between Guyton and Ives, so far as this plaintiff was concerned the legal relation and liability of Ives to him, if any, was that of joint maker or original promissor upon the note. But apart from this, the evidence in the ease did not justify the granting of the instruction, even assuming that Ives was to be treated as a security. The only evidence, in regard to an extension of time after the maturity of the note, was the testimony of Guyton, who proved that when the note fell due he told Bosley he was ready to pay it, “ but would rather keep the money if Bosley did not want it; that Bosley said he didn’t want it — all he wanted was the interest; that witness and Bosley had a conversation about the rate of interest for the next year; that witness asked Bosley if he couldn’t take less, and Bosley answered he couldn’t take less than the same rate, eight per cent., and that witness paid him the interest for the year past, and that Bosley never made any further applica[272]
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Brent, J.,
delivered the opinion of the Court.
This action was instituted by Bosley, the appellee, to recover the amount of a promissory note, dated the 6th of April, 1868, for $1,000, payable twelve months after date, to his order. It is signed by Elisha J. Guyton and endorsed in blank by Charles T. Guyton and William M. Ives, the appellant,
The note was delivered to Bosley by Guyton, the drawer, to secure the payment of $1,000, which he had loaned him, and the principal question presented in the case is fhe character of Ives’ liability — the appellee, Bosley, claiming that he-is liable as maker of the note, while the appellant, Ives, insists that he only became liable as endorser.
After the plaintiff had proved the signatures to the note, and that they were all upon it when it was brought and delivered to him for the payment of the money which he then [269]*269loaned, the defendant offered to prove, by his own testimony, that at the time he placed his name upon the back of the note, he signed it as endorser. Upon objection being made by the plaintiff to this testimony, the Court ruled it inadmissible, and this forms the subject of the first bill of exceptions.
The obligation of Ives, as established by the-proof of the plaintiff, is clearly that of an original promissor. At the time of the transaction between Bosley and Guyton, which resulted in the loan to the latter of $1,000, the note in question was delivered to Bosley, filled up with his name, as payee, signed by E. J. Guyton, and endorsed in blank by Charles T. Guyton and Wm. M. Ives, the appellant. It was delivered to Bosley to secure the money which he had loaned, and was so accepted by him. These facts establish, by conclusion of law, the responsibility of Ives as a joint maker or original promissor. Essex Co. vs. Edmands, et al., 12 Gray, 274; Sylvester, Ex’r. vs. Downer, 20 Vermont, 356 ; Rey, et al. vs. Simpson, 22 How., 341; Sullivan vs. Violett and Dempsey, 6 Gill, 181. It is true, as was urged in the argument, that the contract entered into by a blank endorsement, will generally receive such a construction as will give effect to the intention of the parties, and that parol evidence will be admitted to show and explain what liabilities were intended to be assumed at the time of the transaction. Story on Prom. Notes, secs. 58, 59; 20 Verm., 359; 22 Howard, 351. Ifj however, the contract set up is different from that which attaches by presumption of law, it must be established by proof, showing that both parties, promissor and promissee, so intended and agreed. "Were it otherwise, a creditor who, in the utmost good faith, takes a note similar to the one in the present case, could readily be defrauded by an agreement between the drawer and a blank endorser. In the case of Rey, et al. vs. Simpson, above referred to, the Supreme Court of the United States say: “ "When a promissory note, made payable to a particular person or order, * * * is first endorsed by a third person, such third person is held to be an original promissor, [270]*270guarantor or endorser, according to the nature of the transaction and the understanding of the parties at the time the transaction took place. If he put his name on the back of the note at the time it was made, as surety for the maker and for his accommodation, to give him credit with the payee, or if he participated in the consideration for which the note was given, he must be considered a joint maker of the note. On the other hand, if his endorsement was subsequent to the making of the note, and he put his name there at the request of the maker, pursuant to a contract with the payee for further indulgence or forbearance, he can only be held as guarantor. But if the note was intended for discount, and he put his name on the back of it with the understanding of all the parties that his endorsement would be inoperative until it was endorsed by the payee, he would then be liable only as a second endorser in a commercial sense, and as such, would clearly be entitled to the privileges which belong to such endorsers.” Applying these principles to the present case, it is clear that the defendant cannot avoid the liability of a joint promissor, which the law has attached to his blank endorsement, unless he proves a different understanding of all the parties. The conclusion, therefore, necessarily follows, that testimony which does not tend to establish such a general understanding, is inadmissible. The proof, offered and rejected by the Court below, was, that Guyton, the drawer of the note, “ came to the store of the defendant and asked him to endorse the note in question for his, Guyton’s benefit, and that he signed his name on the back of said note as endorser.” It is not pretended that Bosley was present at any such agreement, or knew of it, or in any way assented to it.
The next exception is taken to the granting of the second prayer of the plaintiff, the rejection of the third, fourth and fifth prayers of the defendant, and the additional instruction given by the Court.
The objection to the second prayer of the plaintiff was abandoned at the argument, and this brings us to the con[271]*271sideration of the propriety of rejecting the third, fourth and fifth prayers offered by the defendant. Both the third and fourth prayers proceed upon the theory that the defendant, Ives, signed the note as endorser. There is no testimony in the case from which the jury would have been justified in reaching such a conclusion. All the proof fixes upon him the liability of maker, and in that capacity only was it attempted to hold him liable. As there was no testimony, therefore, to support these prayers, they were properly rejected.
The fifth prayer of the defendant, which presents the question whether the defendant was discharged from liability by an agreement of the plaintiff to allow the drawer of the note to retain the money after he had offered to pay it, could not have been granted ujjon the evidence in the case. The theory of the prayer is made to rest upon the fact that the defendant was security only, and submits to the jury to find whether he was so or not. This was clearly not a question proper to be submitted, upon the evidence in the case, to their finding. jSIo matter what may have been the equities between Guyton and Ives, so far as this plaintiff was concerned the legal relation and liability of Ives to him, if any, was that of joint maker or original promissor upon the note. But apart from this, the evidence in the ease did not justify the granting of the instruction, even assuming that Ives was to be treated as a security. The only evidence, in regard to an extension of time after the maturity of the note, was the testimony of Guyton, who proved that when the note fell due he told Bosley he was ready to pay it, “ but would rather keep the money if Bosley did not want it; that Bosley said he didn’t want it — all he wanted was the interest; that witness and Bosley had a conversation about the rate of interest for the next year; that witness asked Bosley if he couldn’t take less, and Bosley answered he couldn’t take less than the same rate, eight per cent., and that witness paid him the interest for the year past, and that Bosley never made any further applica[272]*272tion for payment until April, 1870.” There is certainly nothing disclosed by this proof, which establishes any such contract, as would have prevented a suit by Bosley against Guyton, or would have deprived Ives of the right of paying the note at any time after its maturity. The agreement was a mere promise of indulgence without any consideration to support it, and not therefore a binding obligation upon either party. The terms of the loan were not changed, or a new debt created between the parties. The interest spoken of was the rate that had been fixed upon and understood for the first year of the loan, and does not seem to have been a matter mentioned by the parties until after Bosley had promised to give further time for the payment of the debt. But even if the time had been extended upon the express understanding that eight per cent, interest was to be paid, the agreement would still be treated in law as nudum pactum. The payment of usurious interest cannot be enforced, and a promise to pay it cannot therefore be held to constitute a good and legal consideration. The question presented by this prayer arose upon a very similar state of facts in the case of Hoffman & Rizer vs. Coombs, 9 Gill, 284. In that case the defendants, who had endorsed the promissory note sued upon, claimed that they were discharged from all liability on it, upon the ground that (he payee and holder of the note had agreed that the drawer, who offered to pay it at maturity, should retain the money for a longer time. But this Court, in affirming the ruling of the Court below, held that the agreement was nudum pactum, and did not operate to discharge the defendants from liability. The present prayer comes within the doctrine announced by this decision, and we think it was properly refused.
It follows from the views already expressed, that the additional instruction given by the Court properly announces the law of this case. It presents for the finding of the jury the important facts given in proof, and if they are found to be true, the conclusion of law attaches, that Ives was an original [273]*273promissor or maker of the note sued upon, and as such was liable in the present action to Bosley, the payee and holder.
(Decided 28th February, 1872.)
Finding no error in the rulings of the Court below the judgment will be affirmed.
Judgment affirmed.