Ulen v. Kittredge

Where one wrote his name in blank upon the back of a promissory note, uu a guarantor of the payment, and authorized another to write a sufficient guaranty over the name, it was held to be a memorandum in writing signed by the party, within the meaning of the statute of frauds; and parole testimony was received to prove such authority.

This action was assumpsit, in which the plaintiff declared upon the guaranty of the defendant of two several promissory notes, made by Eliphalet Butman, for the sum of 100 dollars each, payable to the plaintiff or his order ; which were set forth in two distinct counts, in each of which the plaintiff avers that, in consideration of his forbearing until his return from sea to sue the said Butman, the defendant Kittredge promised to guaranty the payment of the said note. At the trial, which was had upon the general issue before Sewall, J., April term, 1809, the notes declared on were given in evidence, with the defendant’s endorsements thereon of his own name in blank: and which, by the agreement of the parties, were to be considered as filled up according to the tenor of the plaintiff’s declaration. It appeared from the testimony of Joseph Strout, that the notes had been left in his care, during the plaintiff’s absence at sea, with directions to collect the money due upon them, and that he, after many applications to Butman, notified him that the notes would be put in suit, unless paid, or the payment secured ; that finally the defendant and the said Butman came together to the witness, when Butman offered the defendant as a surety; who being asked if he consented to become security for the money until Ulen’s return, and being told by the witness, that if Butman did not then pay it, he. the witness, should expect to call on the defendant, he answered that he would pay, if Butman did not, upon Ulen’s return, and proceeded to endorse the notes in blank ; and being requested by the witness to write something over the name, the defendant answered that his name was enough, and that if he wrote it full, it would not make it stronger. It also appeared that Butman became insolvent, and absconded before the plaintiff’s return, and that some time after the plaintiff’s return, Strout demanded payment of Butman’s brother [ * 234 ] who was reputed to be his agent, and afterwards * of the defendant. Strout testified that when he made the demand upon the defendant, the latter observed he had tried to secure himself, as soon as he knew of Butman’s absconding, but c.ould not. The defendant’s counsel objected to the admission of any parole testimony, which would operate to explain the intent of the parties in the endorsements by the defendant. This objection was overruled by the judge, and he directed the jury to find for the plaintiff; and their verdict was so taken-, subject to the opinion of the Court upon the report of the judge of the afore-recited facts; it being agreed at the trial that the plaintiff might file any new counts upon the same facts. The cause was briefly argued at the last November term in this county, by Prescott for the plaintiff, and Story for the defendant.