Peters v. Chamberlain — 36 N.Y. St. Rep. 1000

Majority

p. 1000

William R. Peters et al., App’lts, v. Winfield S. Chamberlain et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed February 11, 1891.)

Headnote

1. Bills and notes — Unauthorized alteration of endorsement — Guaranty.

Defendants endorsed the note of a corporation in blank. On delivery of the note to plaintiffs, the attorney for the corporation, without authority from defendants, wrote a guaranty of payment of the note above their-endorsement. In an action upon the note alleging that the defendants endorsed said guaranty upon the note. Held, that their contract was not one of guaranty, and the nature of their liability as endorsers conld not, by any such writing over their signatures, be changed into that of guarantors.

3. Same—Amendment of pleadings.

A motion to conform the pleadings to the proofs in such a case cannot be granted, because a cause of action against defendants as endorsers would he entirely different from one against them as guarantors.

Appeal from judgment dismissing the plaintiffs’ complaint.

R. L. Harrisoti, for app’lts; W. H. Bayliss, for resp’t Botsford; T. O' Callaghan, for resp’t Chamberlain.

The complaint in this action alleged the copartnership of the plaintiffs, the organization of the Empire Manganese & Iron Co., and that on the 11th of December, 1889, the defendant the Iron Co. made its promissory note in writing whereby thirty days after date it promised to pay to the order of the plaintiffs $2,222.70, and that after said note was made, and before maturity thereof, and before the same was delivered, the

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defendants Chamberlain and Botsford endorsed the same as follows : “ The undersigned, for value received, guarantee the payment of the within note at maturity. W. S. Chamberlain, X. J. Botsford; ” and that at the maturity thereof the said note was duly presented for payment,.but was not paid; of all which due notice was given to the defendants. The defendants’ answer denied that they endorsed the note as alleged in the complaint.

Upon the trial it was established that the company, of which the ■defendants were officers, obtained a loan from the plaintiffs in July, 1889, and notes were given to secure the payment thereof. A note falling due in December, an arrangement was entered into by which the plaintiffs agreed to take an extended note with the endorsement of the defendants. The note in suit was brought to the office of the plaintiffs by one Mr. Dill, who was the counsel of the defendant; at that time it was endorsed in blank, and some objection having been raised to the form of the endorsement Mr. Dill wrote in the guaranty over the signatures of the defendants. There was no evidence that Mr. Dill had any authority whatever to make such alteration in the note. Upon this condition of the proof a motion was made to dismiss the complaint, which was granted.

We see no reason to disturb this result. The relations of the endorsers to this note seem to have been entirely misapprehended, .although if the note had remained in its original condition, and it had been affirmatively established that the defendants endorsed the note for the purpose of giving it credit with the plaintiffs, the payees therein named, a recovery might have been had against .the defendants under the principles laid down in the case of Moore v. Cross, 19 N. Y., 227 .

But their contract was not one of guaranty, and an endorser ■under such a contract could not be charged as a maker or •guarantor.

This principle is distinctly held in the case cited, and the relations of the payee and endorsers of a note of this description as contained in the case cited have been affirmed in many later adjudications. Bacon v. Burnham, 37 N. Y., 617 ; Meyer v. Hibsher, 47 id., 270; Phelps v. Vischer, 50 id., 69; Clothier v. Adriance, 51 id., 322; Hubbard v. Matthews, 54 id., 43; Coulter v. Richmond, 59 id., 478; Jaffray v. Brown, 74 id., 393.

This action was brought to charge these defendants as guarantors, the guaranty having been placed upon the note without authority. The nature of their liability as endorsers could not, by any such writing over their signatures, be changed into that of guarantors.

But it is urged that under the principles laid down in the case of Moore v. Cross they might have been held under the proof as •endorsers. It is sufficient to say that the complaint contains no allegations of any such facts, and the cause of action alleged against the defendants was entirely different from that on which "the proof might perhaps have justified a recovery had there been ::no interference with the nature of the endorsers’ contract

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The motion to make the pleadings conform to the proof could not prevail, because a cause of action against the defendants as endorsers was entirely different from the cause of action against them as guarantors.

Upon the whole case, therefore, we think the judgment should be affirmed, with costs.

Bradt and Daniels, JJ., concur.