Majority
p. 131Simpson against Griffin. NEW YORK May, 1812
Headnote
The payee endorser note" who Hm the^ndorsee ™ default of cannot com-to * ‘pay^the suít^Th/ma herís liable to the payee for the amount of the note only.IN error, on certiorari, from a justice’s court.
Qriffin sued Simpson before the justice, and declared for money had and received to his use, and for money lent. The defendant pleaded non assumpsit. The plaintiff proved, that he had been sued as endorser of a note drawn by the defendant, and had been obliged to pay, besides the amount of the note, 19 dolIars, costs of suit. The taxed bill was produced to the justice, who gave judgment for the plaintiff, for the amount.
If the endorser of a note be duly fixed, he ought to pay it, without waiting to be sued, but if he finds it more convenient to delay taking up the note, until he is prosecuted to judgment and execution, the drawer ought not to pay for that convenience. It is his own fault or misfortune that subjects him to costs, and he cannot resort to the drawer for indemnity against those costs. The mere fact of drawing the note does not imply a promise to save the payee harmless from all costs and charges that he may be subjected to, as endorsor. There must be a special promise to save harmless, before the payee can call upon the
p. 132
drawer for costs accrued by the default of the payee himself. As payee, he can only look to the drawer for the amount of the note. The judgment must, therefore, be reversed.
Judgment reversed.