Newcomb v. Raynor

21 Wend. 108

• Court: New York Supreme Court
• Decided: May 15, 1839
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

I am of opinion the plea •constitutes a good bar to the action. As between the first and subsequent endorsers, the former must be regarded in the light of principal; he stands behind them upon the paper, and is bound to take it up, in case of default of the maker. A discharge of him, therefore, by the holder (regarding the relative position of the parties,) on general principles, operates to release them.

It is said their rights are not prejudiced, as they may still resort to an action against him if subjected to the payment of the note, as the release leaves the implied contract existing between the first and subsequent endorsers unimpaired. Conceding this to be so, to permit a recovery against the defendants would but lead to an unnecessary circuity of action, The plea shows a discharge for a presumed good consideration (as it is under seal) of the first endorser, and it cannot be doubted as the case stands, that if the defendants should be obliged to call upon him, the plaintiff would be bound to take his place. The case, therefore, comes within the familiar rule, that a release of the principal operates to discharge the surety.

It is further said, that Goings may not have been legally charged as an endorser. If this were so, the plaintiff should have replied the fact, as we will not presume it in the face of the acts of both him and the plaintiff to the contrary. The release would not have been necessary on such a supposition.

Judgment for defendants on demurrerleave to amend on usual terms.