Whiton v. Mears

52 Mass. 563

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1846
• Status: Published

Opinion

Wilde, J.

Upon the facts agreed, the first question to be decided is, what was the contract between the present parties. The note sued was given by one Kimball to one Simpson, and was payable to his order. The note was afterwards transferred to the defendant for a valuable consideration, who after-wards, in consideration of the sum of $20, transferred the same to the plaintiff by delivery, and at the same time wrote his name on the back of the note. These facts, we think, authorized the plaintiff to charge the defendant as a guarantor, and to write over his name a contract to that effect.

The defendant cannot be charged as a surety, for he was no party to the original contract; but he afterwards purchased the note of the payee, and transferred it to the plaintiff for a valuable consideration. Nor can he be charged as indorser, for the note was not indorsed by the payee.

But the plaintiff’s counsel contends, that although the defendant was not originally a party to the note, yet ás he, for a valuable consideration, indorsed it, and passed it to the plaintiff, the plaintiff was thereby warranted in writing over the defendant’s name a new note, or an absolute promise to pay the original note ; and several cases were cited from the New York reports

* in support of this argument. Whether this case comes within the principle laid down in any of those cases, we do not undertake to say; but we are clearly of opinion that it does come within the principles laid down in the case of Oxford Bank v. Haynes, 8 Pick. 423, as to the effect and obligation of a contract of guaranty; and that the defendant is not chargeable on any other contract. In that case, it was decided that the guarantor of a promissory note will be discharged by the neglect of the holder to demand payment of the maker and to give the guarantor notice of non-payment, provided the maker was solvent when the note fell due, but afterwards, and before notice, became insolvent. In the present case, no notice of the non-payment Of the note was given to the defendant until more than a year after the plaintiff demanded payment of the maker, and until after he had applied to a master in chancery to take the benefit of the insolvent debtors’ act, whereby all his property was afterwards transferred to his assignee. This notice was clearly not seasonable and reasonable. If it had been given in a reasonable time after the demand on the maker, the defendant might have obtained security or payment from him. But the plaintiff gave credit to Kimball, the maker of the note, on his promise to pay it; and the neglect to give notice to the defendant deprived him of the opportunity to secure himself, whereby he was discharged from his conditional liability.

It was argued for the plaintiff, that it must he presumed or inferred, from the facts agreed, that Kimball was insolvent when the note was transferred to the plaintiff. But there is no fact from which any such inference can he drawn; and it is incumbent on the plaintiff to prove, that at the time the note was transferred, or when the demand was made on Kimball, he was not only insolvent, or not able to pay all his debts, but also that he had no property liable to attachment; otherwise, the defendant was clearly deprived, by the plaintiff’s laches of an opportunity to secure himself.

Judgment for the defendant.

Dean v. Hall, 17 Wend. 214. Oakley v. Boorman, 21 Wend. 588. Luqueer v. Prosser, 1 Hill, 256, and 4 Hill, 420. Miller v. Gaston, 2 Hill, 188, Manrow v. Durham, 3 Hill, 584. Hunt v. Brown, 5 Hill, 145.