McLaren v. Watson's Executors

26 Wend. 425

• Court: New York Supreme Court
• Decided: July 1, 1841
• Status: Published

Opinions

After advisement, the following opinions were delivered:

By the Chancellor.

The testator in .this case, by a sepa.rate.and distinct instrument, which contained no words 0f negotiability, and was not endorsed or written upon the note, guarantied the payment of a note at sixty days, .drawn by W. A. Biackney and E. ,0. Biackney, payable to the order of W. Watson.of New-Milford, W- Watson of Pearl-street, and D. S. Tuthill, for $300: which guaranty, as .the plaintiff alleges, was executed for the purpose of enabling one of the endorsers of the note to raise money thereon from D. M. Frye. Frye, who held the note and guaranty when the note became due and payable, or rather the guaranty and a note not correctly .described in such guaranty, finding that the validity of his title to the note would be disputed, transferred the note and the guaranty to the plaintiff McLaren, who .sued the personal representatives of the guarantor, in his own name, to enable him to use Frye as a witness to disprove the .defence which ft was anticipated would be .set -up.

Several questions were raised upon the argument, which I have not thought necessary to notice, as I am perfectly well satisfied that the objection that this separate guaranty Was not negotiable, so as to authorize the assignee to bring a suit thereon in his own name, is well taken. A guaranty endorsed upon a negotiable .note, whereby the guarantor agrees with the holder of the note that he will .be answerable .that the note shall be paid to him or to his.order, or the bearer thereof, when it becomes due, is probably negotiable by the transfer of the note upon which it is written; -for it .is in fact a special endorsement of the note, or more properly a negotiable .note in itself. But to make a guaranty negotiable as a part of the note to which it relates, it must be on the note itself, or at le.ast it must be annexed to it: in.the nature of ,un.allonge qr ekeing out of the-paper upon which the note is written.

There is a mercantile guaranty, recognized by the codes of commerce, both of France and Spain, called an aval, by which the payment, of a bill of exchange may be guarantiéd. When the form of the aval is such that it cari opérate as a general endorsement, it will páss ta any subsequent éndorsee or holder of the bill, in thé same márinér as if it was an endorsement ón the bill itself; but wheil it is restricted in its terms,- as in case of an endorsement filled up without words of negotiability, it can only be sued by the person to whom it is given. Code of Com. of France, Rod. Trausl., B. 1, art. 142. Code of Com. of Spain, in French, by FoucKer,p. 165, tit. 1, § 6, art. 477, 478. But to make thé guarantor liable in those cases the same protests arid notices are necessary as in the case of a real endorser. Crivelli’s Diet. Du Droit, tit. Aval. That species of negotiable mercantile guaranty, is not even co-extensive with those countries where the civil law prevails; for in the case of Cooley v. Lawrence, 4 Martins’ Rep. 640, the supreme court of Louisiana held that a guáranty of that nature was not known to the laws of that state, but must be governed by the rules of other special contracts. See also, 3 Martin’s Rep. N. S. 659. 10 Louis R. 374. Arid Mr. Bell, the distinguished commentator on the cominercial law of Scotland, where the civil law also prevails, distinctly expresses the opinion that the sepárate guaranty of a bill or note is not negotiable so as to authorize a subsequent holder to sue on it in his own riame. 1 Bell’s Cdmm. on Com; Law of Scotland 376.

There is nothing in the particular circumstances of this case, which can justify the court in overturning the established principles of law relative to the negotiability of written instruments, for the purpose of enabling the real party to the litigation to sell his iriterest to a third person, and to become a witness to support the claim. And as I have ho doubt as to the correctness of the decision of the court below, upon the question I have thus examined, I ¿hall vote to affirm the judgment.