Snevily v. Ekel

1 Watts & Serg. 203

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1841
• Status: Published

Opinion

Per Curiam.

The law of guaranty, as it was settled by Johnston v. Chapman (3 Penn. 18) and Isett v. Hoge, (2 Watts 128) is perhaps different from what it is in England and many of the American states. The popular understanding of the contract however is, that it creates an obligation to pay if the guarantee should be unable to recover the money from the debtor; and our interpretation of it will most generally give effect to the actual intention of the parties. A guaranty is certainly a different thing from a commercial endorsement. Is there anything in the defendant’s contract in this instance which would authorize the plaintiff to treat it as a double one — as an endorsement or as a guaranty, at his option ? An endorsement in blank induces' the broadest mercantile responsibility which the endorser can contract, because it is an authority for the endorsee to write anything he pleases over the name, and had the name stood alone he might have done so here; but there is no such authority where the terms are filled up. Expression facit cessare taciturn; and there is no implication of a promise where one is expressed. The name, therefore, shall not stand for an endorsement, and the special promise for a guaranty. The writing on the back of this note, being an engagement to pay if the drawer should be unable, created a single responsibility. And the defendant may have had particular reasons to engage no further than for the drawer’s solvency, in preference to becoming immediately liable on receiving notice of the note’s dishonour. Such being the terms of the contract, the transferee was not at liberty to treat him as an endorser.

Judgment reversed, and a venire de novo awarded.