Lamourieux v. Hewit

5 Wend. 307

• Court: New York Supreme Court
• Decided: July 15, 1830
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

Due diligence was used in prosecuting the maker. In Moakley v. Riggs, 19 Johns. R. 69, it was held that a delay of 19 months was unreasonable, and discharged the guaranty, and that a term should not have been suffered to pass; which principle was recognized in Kies v. Tifft, 1 Cowen, 98. But this doctrine was held in Thomas v. Woods, 4 Cowen, 183, not applicable where the original debtor is insolvent.

I am of opinion, however, that an action cannot be maintained on the guaranty in the name of the present plaintiff. The defendant was liable upon his guaranty, not as an endorser of negotiable paper, but as the party to a special contract, which might have been written on a separate piece of paper as well as on the back of the note. The contract was made with Tuttle, and any action upon it must be in the name of Tuttle. Promissory notes are negotiable only by virtue of the statute; but this negotiable quality is not extended to any other instrument relating to the note. The justice erred in permitting the plaintiff to alter the contract. Where a note is endorsed in blank, the body of the endorsement may be filled up on the trial, but a warranty cannot be altered. The common pleas erred also in sustaining the suit.

The judgment must be reversed.