Wynn v. Poynter

66 Ky. 54, 3 Bush 54, 1867 Ky. LEXIS 122

• Court: Court of Appeals of Kentucky
• Decided: December 14, 1867
• Status: Published

Opinions

JUDGE ROBERTSON

delivered the opinion oe the court:

This appeal seeks the reversal of a judgment against the appellant in . an action on the guaranty of a note sold to him and indorsed with the name of the appellee as vendor. There is nothing in the record to authorize the presumption that the indorsement of the appellee’s name on the note was intended to import more than an ordinary assignment; and this interpretation is fortified by the fact that the first petition sought a judgment against him as mere assignor or vendor, by the fact that his name was erased before the institution of the suit on the note, and by the fact that the appellant did not assert the appellee’s liability as special guarantor of payment without suit against the obligors in the note until after he had ascertained, in the progress of this action, that laches had exonerated the appellee as simple indorser.

The sale of the note implied a guarantee of its genuineness as to all apparent parties to it; but the holder was under an implied obligation to try, by due diligence, the liability as well as the solvency of the ostensible obligors; and this has certainly never been done, so as to hold the appellee liable either as guarantor or vendor; that there was no special guarantee dispensing with suit on the note, and that there was not legal diligence in the prosecution of the suit as brought, are both deductions of law from the facts; and therefore there was no available error in the peremptory instruction to find for the appellee.

Wherefore, the judgment is affirmed.