Martin v. Fales

24 N.H. 242

• Court: Superior Court of New Hampshire
• Decided: December 15, 1851
• Status: Published

Opinion

Perley, J.

The note upon which this action is founded was made payable to James Heaton, one of tbe defendants, or bearer; was joint and several, and signed by the other defendants, Orrin and George Fales. It was delivered to Heaton upon a consideration which passed from him, and was a complete security in his hands, upon which the makers owed him seventy dollars, payable in one year. It was a contract with him upon which, after the time limited for payment, he could have maintained an action against the makers, if he had retained the note ; and if he had assigned it by delivery or indorsement, the holder would have been substituted in his place, and the note would have been payable according to its terms and legal effect to the bearer. This was the original contract made by George and Orrin Fales.

The contract on which the plaintiff sues is a joint contract by the original makers of the note and the payee, to pay her the sum named in the note. She claims as on an original contract made jointly by all the defendants, and she must shew that such a contract was made, otherwise she cannot recover in this action.

There is nothing in the case from which it can be inferred that when Orrin and George Fales signed the note, it was agreed or understood by them that Heaton should add his ñamo and transfer the note to the plaintiff, or any other person, as the joint and several note of the defendants. At the time when Heaton set his name on the note, it was a perfect note due to him. Nor is this the case of a note put into the hands of a nominal party for the purpose of being afterwards, upon indorsement or the addition of new names, delivered to take effect as a security upon that delivery. In such cases there is no contract completed till the subsequent delivery. If a note is drawn, payable to a bank or any other payee, and is in terms such as would allow of additional signatures, and is signed by one party and entrusted to another, or to the person who expects to raise money on it, it may well be understood that other parties are to be procured to sign it before it is delivered to a real holder, and that all who may sign are to be held jointly, or jointly and severally, according to the terms of the note. Awde v. Dixon, 20 Law J. Rep. (N. S.) Ex. 295, 5 Law and Eq. Rep. 512.

But this contract was completely made and the security perfect in the hands of the payee. By that contract the makers were liable to the payee, or other legal holder of the note, jointly and severally, but they were not liable jointly with the payee.

There is no evidence in the case of any assent by the original makers of the note to the new contract, on which they are sought to be charged. And tve cannot see, in the nature of this negotiable security, any way in which legal authority can be implied to bind them by another and different contract. There is nothing to shew that the plaintiff was deceived when she took the note. It was in the usual shape of a complete security, payable and due to the payee, and he transferred it to her as such. We are at a loss to discover any ground the plaintiff could have had to suppose that the payee was authorized' to change entirely his relation to the note, and, instead of the payee, entitled to receive the money, transform himself into a joint and several maker with the other defendants, so as to bind them to the new contract.

The original makers of the note made and completed their contract when they signed it; the other defendant made no contract till he put his name on the back. If the payee could thus make himself an original joint promisor, a few days after the note was made by the other signers, he might at any indefinite period of time afterwards. If the plaintiff can recover in this action, it is upon the ground that there is one joint and several contract by all the defendants. Yet it is plain that if the note were payable on demand, without any new promise, there would be a different limitation of the action as to the different defendants. The action would accrue against the original makers from the date of the note, but against the other defendant from the time when, on transferring the note, he set his name on the back.

When the original makers became parties to the note, they entered into an implied contract with each other that they would contribute equally to its payment; but they made no such contract with the payee; still less did they contract that he might sign the note as surety for them and claim the whole amount in that character, if he paid it to his indorsee or another holder. The difference between the direct liability of the makers to the payee, and their implied and consequential liability to- a surety, is very material. The action of the surety would accrue upon his payment of the money, which might be aftér the original liability of the makei’3 was barred by the statute;' for the payee, signing after the original makers, might be compelled to pay in a suit commenced after the action against the makers was barred.

If the evidence offered had been admitted, it would not have proved the joint contract on which the plaintiff has declared. If the signature of Heaton would bind him as an original maker, it cannot charge the defendants jointly with him, because they were not parties to his contract. Their contract was with Heaton, and different in terms and in legal effect from that upon which they are sued.

Even if Heaton had not been the payee of the note, his signature having been put upon it after it was made and delivered as an operative security, the original makers could not be held jointly with him. Story on Prom. Notes, § 57; Bank v. Colcord, 15 N. H. Rep. 119. We have not put the decision of this point upon any distinction between signing on the back and at the bottom. There is a great number of cases in which questions of much difficulty have arisen as to the liability of parties who place their names in various ways and under different circumstances on the back of notes. The decisions are confused and conflicting. The rule which excludes parol evidence to control or vary written contracts, appears to have been in some instances relaxed or evaded, and the perplexity and uncertainty which that rule is intended to prevent, have followed as the necessary consequence. See opinion of Hosmer, J., in Beckwith v. Arnold, 6 Conn. Rep. 315.

This case does not call upon us to enter into the discussion of these embarrassing questions, and we are not disposed to anticipate the task. No authority has been cited, or has been found, which shews that the plaintiff can charge the defendants, Orrin and George Eales, as joint contractors with Heaton, the payee on this note, on the facts stated in the case.

Judgment on the nonsuit.