Snevily v. Johnston

A note with its blank endorsements and guaranties, in the absence of proof to the contrary, forms an entire transaction; hence, in an action upon a guaranty endorsed upon a negotiable note, it is not necessary to prove any other consideration for it, than what appears upon the paper.

ERROR to the Common Pleas of Dauphin county. John Johnston, for the use of Jacob Rehum, against John Snevily. Appeal from the judgment of a justice. Plaintiff stated that he sued to recover the sum of $93.05, due on a promissory note, drawn by Mentor Perdue, dated December 21st, 1838; whereby said Perdue promised to pay to the order of John Johnston, sixty days after date, the sum of $93.05, which said note, the said John Snevily endorsed and guaranteed the payment of to said John Johnston, by his written agreement, made the day and year aforesaid, in the following words, viz.: “ I guarantee the within note to John Johnston. (Signed) John Snevily.” That on the day said note fell due, a demand was made for payment on Mr Perdue, the drawer, who refused to pay, and notice thereof was, on the same day, given to said John Snevily, and the note was then duly protested; of which notice was also given to said Snevily. In consideration thereof, he, the said Snevily, then and there became liable to pay the amount of said note, when he should be thereunto afterwards required. Wherefore the said John Snevily became liable to pay the said sum of $93.05, with interest from 22d of February 1839, and costs of protest, $1.37^. Plaintiff gave in evidence the note and endorsement: “ $93 Tfjy Mount Holly Furnace, Dec. 21st, 1838. Sixty days after date I promise to pay to the order of John Johnston, ninety-three dollars and Th> without defalcation, for value received. (Signed) Mentor Perdue.” (Endorsed on back,) “ I guarantee the within note to John Johnston. (Signed) John Snevily.” (Further endorsed,) “ John Johnston.” Protested at Carlisle, and demand made, 22d of February 1839. John M. Woodburn sworn. I knew Mentor Perdue, at Mount Holly Iron Works, Cumberland county, in 1837 and 1838. In the latter part of the year 1838, his property was sold out by the sheriff of Cumberland county. I understood him to be insolvent. He went from there to Lancaster county. He carried on Mount Holly Iron Works. He was insolvent in January 1839. I do not know where he was after he left Cumberland county. I understood him to have a great many debts. He left Cumberland in the winter of 1838 or ’9; I do not know that he had left before February. The court was requested to charge the jury on the following points: 1. That said defendant not being a party to the note, it was therefore necessary and material to plaintiff’s right of recovery to aver and prove a consideration for his said guaranty. 2. That the said defendant not being a party to the said note, and being merely a guarantor, it was incumbent on the plaintiff to resort for recovery of the amount thereof, in the first place, and before proceeding against said defendant, to the drawer of it, or else to aver and prove, and at all events to prove the insolvency of said drawer, at the time said note fell due, as an excuse and reason for not proceeding against him. 3. That the contract of guaranty made by defendant, on which this suit is founded, was specially limited to John Johnston, with whom it was made, and cannot be enforced in favour of Johnston’s assignee, the present plaintiff. 4. The statement does not contain the sufficient and necessary averments of a consideration to the defendant for his undertaking, and of the insolvency of the drawer of the note. Parsons, President. — 1. The court answer the first point in the negative, and say that the law is not therein correctly stated; that by the guaranty being made in writing, on the part of the defendant, to pay to the plaintiff the amount of the note, it is a new undertaking ; a consideration is presumed sufficient to authorize the plaintiff to recover; the act of thus writing a guaranty, imports a consideration, and casts the burden of proof on the defendant, to show a want of consideration; this objection cannot so far prevail as to defeat the plaintiff’s right to recover, under the facts now disclosed in the cause. 2. In answer to the second point thus submitted, the court instruct the jury, if they believe that Perdue was insolvent in February of 1839, and also when this suit was brought, this objection cannot prevail; and the plaintiff can recover if the maker was insolvent and unable to pay the note. 3. To the third point the court say that this action is now brought in the name of Johnston, for the use of Rehum; and the court refuse to give the direction prayed for. 4. In answer to the fourth point thus submitted, the court say that the statement or narr. is sufficient to authorize the plaintiff to recover, as the case is now presented, and under the pleadings, if the jury should find the facts in his favour, and therefore refuse to answer this point in favour of the defendant. The counsel for the defendant excepted to the charge of the court. Assignment of errors: 1. The court erred in their answers to defendant’s points. 2. In not arresting the judgment.