[227]*227The opinion of the court was delivered by
Bennett, J.
— The important enquiry in this case, is, as to the right of the plaintiff to recover upon the facts detailed in the bill of exceptions. It seems the note was signed by Jewett,and indorsed, in blank,by Skinner and Bulkley & Co., in New Yo;k,ifor the purpose for enabling Jewett to pass it to the plaintiff in payment for wool, which he was about to purchase of him, and that Skinner, as well as Bulkley & Co., well understood, at the time the note was indorsed, the use to which it was to be appropriated, and it was accordingly passed to ¡the plaintiff in payment for wool purchased of him by Jewett.
It has ;been decided, in this state, and may be regarded as settled law, that when a person, not a party to a note, signs his name upon the back, without any words to express the nature of his undertaking, he is considered as a joint promissor with the other signers. Barrows v. Lane & Benham, 5 Vt. R. 161. Knapp v. Parker, 6 Vt. R. 642. Flint v. Day, 9 Vt. R. 347. This is also the settled law of Massachusetts, and in the case of Hunt v. Adams, 6 Mass. R. 519, and in Moies v. Bird, 11 Mass. R. 436, it was held that, upon theNndorsement alone, the indorser was, prima facie, and without any proof to explain it, to be treated as a joint promissor. It is said, however, in argument, that this contract is to be governed by the laws of New York, and that by the decisions of the courts of that state, the plaintiff is not entitled to retain his verdict. We will examine, for a moment, the New York cases. In the case of Herrick v. Carman, 12 Johns. R. 159, in error, it did not appear that the plaintiff in error indorsed the note for the purpose of giving the maker of the note a credit with the payees of it, or that be was, at the the time he indorsed the note, in any way advised of the use to which the maker intended to apply it. The court say, in the absence of any proof to the contrary, we must intend that Herrick meant only to become the second indorser, with all the rights incident to that situation, and that the fact of his indorsing first, in point of time, could have no influence, as he must have known, and we are to presume he acted on that knowledge, that though first to indorse, yet his indorsement would be nugatory, unless [228]*228preceded by that of the payee of the note.- The case of Tillman v. Wheeler, 17 Johns. R. 326, is decided upon the same principle. The legal presumption, it is said, is, in the absence of any explanatory proof, that the persons who put their names upon the back of a note, do it for the accommodation of the payees, and are to stand as second indorsers. This, it is true, is a different inference from what the' courts of Massachusetts would have made, and, perhaps, of this state. In the cases decided by our courts, it distinctly appears that the persons, indorsing the notes, were fully apprized of the uses to which the notes were to be applied.
In the case of Nelson v. Dubois, 13 Johns. R. 175, it appeared the defendant put his name on the back of the note to give the maker credit with the plaintiff, and that the plaintiff parted with his property, relying upon the indorsement. In that ease the court recognize the case of Hunt v. Adams, 5 Mass. R. 358, and White v. Howland, 9 Mass. R. 314, as sound law, and it was held that Dubois was liable, as upon an original undertaking, as surety, and as much so as if he had- signed the body of the noté. The case of White v. Howland, is very similar to the one before the court. In that case one Taber gave a note to the plaintiff, payable On demand. It appeared the amount of the note was loaned to Taber, upon his agreeing to give his note with two indorsers, and that the note was given with that intent, payable to White, and indorsed by one Coggeshall and the defendant. The court held that the plaintiff was entitled to' recover, and that the effect of the defendant’s signature was the same as if he had subscribed the note upon the face of it, as surety, and that he was answerable as an original promissor with Taber. So in the case of Campbell v. Butler, 14 Johns. R. 349, where A. had agreed to become surety for B., upon the purchase of goods from C., and B. made a note to C. for the amount, payable to his order, on which A. indorsed his name, in blank, it was held, upon the authority of Nelson v. Dubois, that C. might fill up the blank with an express agreement to pay the note, and that A. was liable as an original promissor. The defendant, when he indorsed this note, understood it Was to be passed to Nash, and it was indorsed With this intent, and to give the maker, Jewett, a credit with [229]*229the plaintiff, and not to enable him to put the note in circu- . iation. The presumption, then, that this note was indorsed for the accommodation of Nash, and that Skinner was to stand as second indorser, is effectually rebutted, and the case falls directly within the principle of the case of Nelson v. Dubois, and of Campbell v. Butler. In this case the signatures of all the promissors were made at-the same time, and before the note was delivered to Nash, and the considération, to bind the surety, is apparent from the case, it being the credit given to the principal, by the promissee of the note for the value received of him. The defendant could not be made liable as indorser, simply, so long as the paper remained in the hands of the promissee, and it is evident that he did not indorse it with the expectation of aiding Nash in putting the note in circulation. The well settled principles of law, as well as common justice, require that he should be holden as an original promissor.
The declaration of the defendant, Skinner, to Bulldey and Jewett, at the time the note was made, “ that if they signed such a note, they should stand only as second indorsers, and that Nash would not take it, as it would do him no , good,” can have no effect to limit the liability of the defendant. It was evidently no more than the expression of a legal opinion of the effect of the blank indorsement of such a note. It was not intended to limit the obligation. Besides, this conversation was not carried home to Nash. Jewett can no more be regarded as the agent of Nash, than Bulkley, and when this note was made and indorsed for the express purpose of being passed to Nash, in payment for wool, which Jewett was to purchase of him, the rights of the plaintiff cannot be prejudiced by any private conversation or understanding between the maker and indorsers, not carried home to the knowledge of the plaintiff. Such testimony was wholly immaterial, as to the merits of this action, and, consequently, it is no good ground why this court should grant a new trial, though the court below refused to admit testimony to show that the witness, Jewett, had given a different relation, in this particular, from that which he gave upon the stand.
It is said,in the argument, that there is a variance between [230]*230the declaration and the proof, but this objection is without foundation. In the case of Pease v. Morgan, 7 Johns. R. 468, cited by the defendant’s counsel, it was indeed held thatjwhere the plaintiff declared that the defendants made the note, “ their own proper hands and names being thereto subscribed,”
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[227]*227The opinion of the court was delivered by
Bennett, J.
— The important enquiry in this case, is, as to the right of the plaintiff to recover upon the facts detailed in the bill of exceptions. It seems the note was signed by Jewett,and indorsed, in blank,by Skinner and Bulkley & Co., in New Yo;k,ifor the purpose for enabling Jewett to pass it to the plaintiff in payment for wool, which he was about to purchase of him, and that Skinner, as well as Bulkley & Co., well understood, at the time the note was indorsed, the use to which it was to be appropriated, and it was accordingly passed to ¡the plaintiff in payment for wool purchased of him by Jewett.
It has ;been decided, in this state, and may be regarded as settled law, that when a person, not a party to a note, signs his name upon the back, without any words to express the nature of his undertaking, he is considered as a joint promissor with the other signers. Barrows v. Lane & Benham, 5 Vt. R. 161. Knapp v. Parker, 6 Vt. R. 642. Flint v. Day, 9 Vt. R. 347. This is also the settled law of Massachusetts, and in the case of Hunt v. Adams, 6 Mass. R. 519, and in Moies v. Bird, 11 Mass. R. 436, it was held that, upon theNndorsement alone, the indorser was, prima facie, and without any proof to explain it, to be treated as a joint promissor. It is said, however, in argument, that this contract is to be governed by the laws of New York, and that by the decisions of the courts of that state, the plaintiff is not entitled to retain his verdict. We will examine, for a moment, the New York cases. In the case of Herrick v. Carman, 12 Johns. R. 159, in error, it did not appear that the plaintiff in error indorsed the note for the purpose of giving the maker of the note a credit with the payees of it, or that be was, at the the time he indorsed the note, in any way advised of the use to which the maker intended to apply it. The court say, in the absence of any proof to the contrary, we must intend that Herrick meant only to become the second indorser, with all the rights incident to that situation, and that the fact of his indorsing first, in point of time, could have no influence, as he must have known, and we are to presume he acted on that knowledge, that though first to indorse, yet his indorsement would be nugatory, unless [228]*228preceded by that of the payee of the note.- The case of Tillman v. Wheeler, 17 Johns. R. 326, is decided upon the same principle. The legal presumption, it is said, is, in the absence of any explanatory proof, that the persons who put their names upon the back of a note, do it for the accommodation of the payees, and are to stand as second indorsers. This, it is true, is a different inference from what the' courts of Massachusetts would have made, and, perhaps, of this state. In the cases decided by our courts, it distinctly appears that the persons, indorsing the notes, were fully apprized of the uses to which the notes were to be applied.
In the case of Nelson v. Dubois, 13 Johns. R. 175, it appeared the defendant put his name on the back of the note to give the maker credit with the plaintiff, and that the plaintiff parted with his property, relying upon the indorsement. In that ease the court recognize the case of Hunt v. Adams, 5 Mass. R. 358, and White v. Howland, 9 Mass. R. 314, as sound law, and it was held that Dubois was liable, as upon an original undertaking, as surety, and as much so as if he had- signed the body of the noté. The case of White v. Howland, is very similar to the one before the court. In that case one Taber gave a note to the plaintiff, payable On demand. It appeared the amount of the note was loaned to Taber, upon his agreeing to give his note with two indorsers, and that the note was given with that intent, payable to White, and indorsed by one Coggeshall and the defendant. The court held that the plaintiff was entitled to' recover, and that the effect of the defendant’s signature was the same as if he had subscribed the note upon the face of it, as surety, and that he was answerable as an original promissor with Taber. So in the case of Campbell v. Butler, 14 Johns. R. 349, where A. had agreed to become surety for B., upon the purchase of goods from C., and B. made a note to C. for the amount, payable to his order, on which A. indorsed his name, in blank, it was held, upon the authority of Nelson v. Dubois, that C. might fill up the blank with an express agreement to pay the note, and that A. was liable as an original promissor. The defendant, when he indorsed this note, understood it Was to be passed to Nash, and it was indorsed With this intent, and to give the maker, Jewett, a credit with [229]*229the plaintiff, and not to enable him to put the note in circu- . iation. The presumption, then, that this note was indorsed for the accommodation of Nash, and that Skinner was to stand as second indorser, is effectually rebutted, and the case falls directly within the principle of the case of Nelson v. Dubois, and of Campbell v. Butler. In this case the signatures of all the promissors were made at-the same time, and before the note was delivered to Nash, and the considération, to bind the surety, is apparent from the case, it being the credit given to the principal, by the promissee of the note for the value received of him. The defendant could not be made liable as indorser, simply, so long as the paper remained in the hands of the promissee, and it is evident that he did not indorse it with the expectation of aiding Nash in putting the note in circulation. The well settled principles of law, as well as common justice, require that he should be holden as an original promissor.
The declaration of the defendant, Skinner, to Bulldey and Jewett, at the time the note was made, “ that if they signed such a note, they should stand only as second indorsers, and that Nash would not take it, as it would do him no , good,” can have no effect to limit the liability of the defendant. It was evidently no more than the expression of a legal opinion of the effect of the blank indorsement of such a note. It was not intended to limit the obligation. Besides, this conversation was not carried home to Nash. Jewett can no more be regarded as the agent of Nash, than Bulkley, and when this note was made and indorsed for the express purpose of being passed to Nash, in payment for wool, which Jewett was to purchase of him, the rights of the plaintiff cannot be prejudiced by any private conversation or understanding between the maker and indorsers, not carried home to the knowledge of the plaintiff. Such testimony was wholly immaterial, as to the merits of this action, and, consequently, it is no good ground why this court should grant a new trial, though the court below refused to admit testimony to show that the witness, Jewett, had given a different relation, in this particular, from that which he gave upon the stand.
It is said,in the argument, that there is a variance between [230]*230the declaration and the proof, but this objection is without foundation. In the case of Pease v. Morgan, 7 Johns. R. 468, cited by the defendant’s counsel, it was indeed held thatjwhere the plaintiff declared that the defendants made the note, “ their own proper hands and names being thereto subscribed,” and the proof being that the note was signed in the name of the firm, by one of the defendants, there was a variance. The,declaration, in that case, did not allege that the defendants were partners, or acted under the name of the firm by which the note was signed. In this case the three persons composing the firm of H. & S. Bulkley & Co., are set up, in the writ, as co-partners, under the aforesaid firm, and it is averred, in the declaration, that the defendants made and signed their certain note, &fc., not adding that it was subscribed by the proper hands and names of the defendants. It is always sufficient to declare upon a written instrument according to its legal effect, and if the evidence supports the allegations, it is all that is required. It cannot be objected, as a ground of variance, that Jewett should also have been joined in the suit as a joint contractor. In an action of assumpsit the non-joinder of a joint promissor, is only matter of abatement, and cannot avail the party under the general issue.
It is also said, that inasmuch as the declaration issued in this case against Skinner and H. & S. Bulkley & Co., the plaintiff, to support his declaration, is bound to prove a joint contract made by them all, though a non est inventus has been returned as to the Bulkleys and Sabin. It is not, however, under our statute of 1835, material to decide whether the firm of H. & S. Bulkley & Co. were bound by the signature of Henry Bulkley or not.
Our statute provides, that, when any of the defendants are not a party to the contract, the plaintiff may recover against the other defendants, who are shown to have made the contract. The judgment of the county court is affirmed.