Sweet v. McAllister

86 Mass. 353

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1862
• Status: Published

Opinion

Chapman, J.

The rulings in this case were correct and appropriate. Nothing can be plainer than that, in the absence of any proof to the contrary, the parties to a promissory note are liable on it according to the legal effect of the instrument; that is to say, the maker is liable to the payee and indorsees, the payee to the indorsees, and each indorser to the subsequent indorsees. It may be proved by paroi that the relation of the parties to each other is different from this; for example, that the payee or indorsee was the real principal, or that all the parties were joint principals, or some of them joint sureties. Clapp v. Rice, 13 Gray, 403. But in this case nothing was proved to vary the relation apparent on the note. According to the evidence as stated in the bill of exceptions, when Allen C. French first applied to the plaintiff for assistance, the plaintiff agreed to indorse his note only on condition that he would first get his father to sign it, and McAllister to indorse it. This merely imports that he would assist French as second indorser of such a note.

When the note came to be renewed, the parties acted as if this was the understanding. The defendants signed the note and the plaintiff indorsed it. This act does not imply an agreement of joint liability between the plaintiff and McAllister. The case of Pitkin v. Flanagan, 23 Verm. 160, is cited- as sustaining a contrary doctrine. Some of its dicta may seem to do this ; but the case itself differs from the present case. And if it is in conflict with that of Clapp v. Rice, we must adopt the latter as our guide. In the absence of fraud and misrepresentation, nothing short of an agreement would make the plaintiff jointly liable with McAllister.

The court rightly ruled that he would not be liable without an agreement, even though his language led McAllister to believe he intended to be thus liable. The contrary doctrine would make him responsible for the mistaken belief of McAllister, which is too unreasonable to require refutation.

Exceptions overruled.