Majority
p. 351Campbell against Butler. NEW-YORK, October, 1817.
Headnote
Where A fecurity^oTs® on the purchase of goods fromC., and B. makes a note to C. for the amouut.payable to him or order, on which endorses his name a blank; C. may fill up the blank, with an express guaranty or undertaking,x for value receive d, so as to make the endorser liable, as on an original promise to pay the money.IN ERROR to the court of common pleas, or mayor’s court, of the city of New-York. Butler brought an action of assumpsit against Campbell, in the court below. One James Low was in treaty with Butler, (the plaintiff below,) for the purchase of
p. 3521. That Harvey, the first endorser, was an incompetent witness; being liable on the note, he was interested.[3] 2. The contract proved varied from the one laid in the declaration.[4] The note was endorsed in blank. By filling up the endorsement, with this special guaranty, the contract i® varied, and the rights of the defendant, as endorser, are maternally alteréd. The defendant is liable, as a mere endorser, on cert lain conditions only, as to due notice, See. but by the guaranty he is made
a horse and waggon, w'hich Butler agreed to sell to Low for ISO dollars, provided he could give security for the payment of the money; and Low offered, as security, to give John Harvey and William Campbell, (the defendant below,) as endorsers of two notes, to be drawn by Low, one for 100 dollars, and the other for 50 dollars, which Butler agreed to accept, and the notes were accordingly drawn and endorsed by Harvey, and afterwards by Campbell, who was not then present. The first note was paid, and the action was brought on the second note for 50 dollars.—Harvey, who was a witness, testified that he and Campbell endorsed the notes, to give Low credit with Butler, upon the purchase of the horse and waggon, and to secure the payment of the 150 dollars* to Butler.'
The note was made by Low, payable on the 1st day of May,' (then) next, to James Butler, or order; and when produced at the trial, was endorsed, as follows: “ For value received, I undertake and promise to guaranty the payment of the money within mentioned, to the within named James Butler. John Harvey.”—“ For value received, I undertake and promise to guaranty the payment of the money within mentioned, to the within named James Butler. William Campbell.”
It was admitted that the note was endorsed by Harvey Be Campbell, in blank, but being made payable to Butler, (by mistake, as he alleged,) he had, afterwards, for the purpose of bringing his suit against the endorsers, written over their names, respectively, the guaranty, above mentioned.
The defendant moved for a non-suit, which was" refused by the court below, who were of opinion that the plaintiff was entitled to recover, and directed the jury accordingly, who found a verdict for the plaintiff. The defendant tendered a bill of exceptions, on which the writ of error was brought.
Vanderheyden, for the plaintiff in error, contended,
p. 353liable at all events; and without any recourse against the prior endorser. The holder has no right to convert the engagement of a mere endorser into a guaranty. In Josselyn v. Ames,[3] the supreme court of Massachusetts would not permit the plaintiff to recover on such a guaranty; though they said he might write over an express promise to pay the money, for value received. [Spencer J. We have decided this very point in Nelson v. Dubois,[4] ] insisted, that the sale to Low being on the express condition that he should find security, and the defendant and Harvey consenting to become security, they must be considered as sureties. . If they are not to be deemed guarantors, the contract made with the plaintiff below will not be fulfilled. Harvey, the first guarantor, has no interest in the suit against Campbell.
Henry, contra,
The plain I iff had a right to fill up the blank, so as to render the defendant below liable as a guarantor or surety. It was so decided in this court, in Nelson v. Dubois,[5] and Herrick v. Carman.[6] It is for the plaintiff in error to show that the blank has been filled up improperly, or without sufficient authority.
The question is, whether the plaintiff below was authorized to write such a contract over the names of the .endorsers of the note, respectively, and can sustain an action upon that contract. According to the decision in Nelson v. Dubois, and as the law is recognised in Herrick v. Carman, we think the plaintiff had a perfect right to recover, as on an original undertaking to pay, by each of the endorsers, as guarantors of the note. The defendant in error is, therefore, entitled to judgment.
Judgment for the defendant in error.